GR. No.

L-48928 February 25, 1982

MITA PARDO DE TAVERA, plaintiff-appellant,
vs.
PHILIPPINE TUBERCULOSIS SOCIETY, INC., FRANCISCO ORTIGAS, JR., MIGUEL
CAIZARES, BERNARDO P. PARDO, RALPH NUBLA, MIDPANTAO ADIL, ENRIQUE GARCIA,
ALBERTO G. ROMULO and THE PRESENT BOARD OF DIRECTORS, PHILIPPINE
TUBERCULOSIS SOCIETY, INC., defendants- appellees.

GUERRERO, J.:
On March 23, 1976, plaintiff-appellant Mita Pardo de Tavera filed with the Court of First Instance of
Rizal a complaint against the Philippine Tuberculosis Society, Inc. (hereinafter referred to as the
Society), Miguel Canizares, Ralph Nubla, Bernardo Pardo, Enrique Garcia, Midpantao Adil, Alberto
Romulo, and the present Board of Directors of the Philippine Tuberculosis Society, Inc.
On April 12, 1976, plaintiff-appellant filed an amended complaint impleading Francisco Ortigas, Jr. as
party defendant.
In substance, the complaint alleged that plaintiff is a doctor of Medicine by profession and a
recognized specialist in the treatment of tuberculosis, having been in the continuous practice of her
profession since 1945; that she is a member of the Board of Directors of the defendant Society, in
representation of the Philippine Charity Sweepstakes Office; that she was duly appointed on April 27,
1973 as Executive Secretary of the Society; that on May 29, 1974, the past Board of Directors
removed her summarily from her position, the lawful cause of which she was not informed, through
the simple expedient of declaring her position vacant; that immediately thereafter, defendant Alberto
Romulo was appointed to the position by an affirmative vote of seven directors, with two abstentions
and one objection; and that defendants Pardo, Nubla, Garcia and Adil, not being members of
defendant Society when they were elevated to the position of members of the Board of Directors, are
not qualified to be elected as such and hence, all their acts in said meeting of May 29, 1974 are null
and void.
The defendants filed their answer on May 12, 1976, specifically denying that plaintiff was illegally
removed from her position as Executive Secretary and averring that under the Code of By-Laws of
the Society, said position is held at the pleasure of the Board of Directors and when the pleasure is
exercised, it only means that the incumbent has to vacate the same because her term has expired;
that defendants Pardo, Nubla, Adil and Garcia were, at the time of their election, members of the
defendant Society and qualified to be elected as members of the Board, that assuming that said
defendants were not members of defendant Society at the time of their election, the question of
qualification of the members of the Board of Directors should have been raised at the time of their
election: that assuming that the qualification of members of the Board of Directors can be questioned
after their assumption of their offices as directors, such contest cannot be done in a collateral action;
that an action to question the qualifications of the Directors must be brought within one year from their
election; and that a Director elected without necessary qualification becomes at least a de

facto director, whose acts are as valid and binding as a de jure director. Further, defendant disputed
the timeliness of the filing of the action stating that an action to question one's ouster from a corporate
office must be filed within one year from said ouster.
On the same date, defendant Adil filed a Motion to Dismiss on the ground that the complaint states no
cause of action, or if it does, the same has prescribed. Inasmuch as plaintiff seeks reinstatement, he
argued that the complaint is an action for quo warranto and hence, the same should be commenced
within one year from May 29, 1974 when the plaintiff was ousted from her position.
Plaintiff filed an Opposition to Motion to Dismiss on May 28, 1976, stating that the complaint is a suit
for damages filed under the authority of Section 6, Article 11 of the present Constitution in relation to
Articles 12 and 32(6) of the New Civil Code, and her constitutional right to equal protection of the law,
as guaranteed by Section 1, Article IV of the present Constitution.
On June 2, 1976, defendant Adil filed a Reply to Plaintiff's Opposition to Motion to Dismiss arguing
that since there is an averment of plaintiff's right to office, and that defendant Romulo is unlawfully in
possession thereof, their it is indeed, a case for quo warranto; and that assuming that it is merely a
suit for damages, then, the same is premature, pursuant to Section 16, Rule 66 of the Rules of Court.
On September 3, 1976, the coturt a quo rendered a decision holding that the present suit being one
for quo warranto it should be filed within one year from plaintiff's outer from office; that nevertheless,
plaintiff was not illegally rendered or used from her position as Executive Secretary in The Society
since plaintiff as holding an appointment all the pleasure of the appointing power and hence her
appointment in essence was temporary in nature, terminable at a moment's notice without need to
show that the termination was for cause; and Chat plaintiff's ouster from office may not be challenged
on the ground that the acts of defendants Pardo, Adil, Nubla and Garcia are null and void, they being
not qualified to be elected members of the Board of Directors because the qualifications of the
members of the Board of Directors which removed plaintiff from office may not be the subject of a
collateral attack in the present suit for quo warranto affecting title to the office of Executive Secretary.
On October 13, 1976, plaintiff filed a Motion for Reconsideration to which defendants filed an
Opposition. On November 25, 1976, the court a quo denied the motion for Reconsideration.
Dissatisfied with the decision and the order denying the motion for reconsideration. plaintiff filed a
Notice of Appeal and an Urgent Motion for Extension of Time to File Record on Appeal, which was
granted in an order dated December 15, 1976. However, on December 20, 1976, the court a quo
issued an amended order where it qualified the action as principally one for quo warranto and hence,
dispensed with the filing of a record on appeal as the original records of the case are required to be
elevated to the Court of Appeals.
On August 8, 1978, the Court of Appeals issued a resolution certifying this case to this Court
considering that the appeal raises no factual issues and involves only issues of law, as may be
gleaned from the following assignments of errors:

I. The lower court erred in holding that the present case is one for quo warranto and not an action for
damages.
II. In deciding the case, the lower court erred in not upholding the Society's By-Laws, the applicable
laws, and the pertinent provisions of the Constitution.
III. The lower court erred in holding that the plaintiff-appellant is not in the civil service, and therefore,
not entitled to the guaranty against removal from office except for cause and after due process of law.
The nature of an action filed in court is determined by the facts alleged in the complaint as
constituting the cause of action, and not those averred as a defense in the defendant's answer. The
theory adopted by the plaintiff in his complaint is one thing; that by the defendant in his answer
another. The purpose of an action or suit and the law to govern it, including the period of prescription,
is to be determined not by the claim of the party filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and prayer for relief. Rone et al. vs. Claro, et al., L-4472,
May 8, 1952, 91 Phil. 250). In Baguioro vs. Barrios, et al., 77 Phil. 120, the Supreme Court held that if
the relief demanded is not the proper one which may be granted under the law, it does not
characterize or determine the nature of plaintiff's action, and the relief to which plaintiff is entitled
based on the facts alleged by him in his complaint, although it is not the relief demanded, is what
determines the nature of the action.
While it is true that the complaint questions petitioner's removal from the position of Executive
Secretary and seeks her reinstatement thereto, the nature of the suit is not necessarily one of quo
warranto. The nature of the instant suit is one involving a violation of the rights of the plaintiff under
the By-Laws of the Society, the Civil Code and the Constitution, which allegedly renders the
individuals responsible therefore, accountable for damages, as may be gleaned from the following
allegations in the complaint as constituting the plaintiff's causes of action, to wit:
20. That, as a consequence of the unfair and malicious removal of plaintiff from her
office, which the plaintiff maintains to be contrary to morals, good customs, public policy,
the pertinent provisions of said By-Laws of the Society, the laws, and the guarranties of
the Constitution, by defendants Canizares, Ortigas Jr., Pardo, Adil, Nubla and Garcia,
the plaintiff suffered not only material damages, but serious damage to her priceless
properties, consisting of her honor and reputation, which were maliciously and
unlawfully besmirched, thereby entitling her to compensation for material and moral
damages, from said defendants, jointly and severally, under Article 21, in relation to
Article 32(6) of the New Civil Code;
xxx xxx xxx
24. That as a consequence of the inordinate use and abuse of power by defendants,
Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia, in arbitrarily, illegally, and unjustly
removing the plaintiff from office, without due process of law, and in denying to her the
enjoyment of the guaranty of the Constitution to equal protection of the law, the plaintiff
suffered material and moral damages as a result of the debasement of her dignity, both
as an individual and as a professional (physician) of good standing, therefore,

defendant Caares Ortigas Jr., Pardo, Adil, Nubla and Garcia should be ordered to pay
her moral damages, jointly and severally;
xxx xxx xxx
26. That the acts of the defendants Canizares, Ortigas Jr., Pardo, Adil, Nubla and
Garcia, in illegally removing the plaintiff from her position as Executive Secretary of
defendant Society, which plaintiff was then holding under a valid appointment and
thereafter, immediately appointing defendant Alberto Romulo to the position, is most
unfair, unjust and malicious, because it is contrary to good morals, good customs, public
policy, the pertinent provisions of the Code of By-Laws of the defendant Society, the
laws and the aforementioned guarranties of the Constitution; that the plaintiff complaint
that the said defendants are legally obligated to compensate her, in concept of
exemplary damages, in order to restrain persons in authority from committing similar file
I and un constitutional acts which debase human dignity and inflict injuries to their
fellowmen;
xxx xxx xxx
31. That, as a consequence of the said unjustified refusal of the defendant, present
Board of Directors of the defendant Society, to resolve the complaint of the plaintiff and
extend to her the reliefs to which she is entitled under the law and the Constitution, it is
respectfully submitted that said defendant Board is under legal obligation to correct the
illegal and unconstitutional act of defendants Caares Ortigas Jr., Pardo, Nubla, Adil and
Garcia, by restoring the plaintiff to her position as Executive Secretary of the defendant
Society, payment of salaries and other benefits, corresponding to the period of her
illegal and unconstitutional removal from office.
Further, it must be noted that the action is not only against Alberto Romulo, the person appointed in
her stead, but also against the Society and the past and present members of the Board. In fact,
Romulo is sued as present occupant of the office and not to hold him accountable for damages
because he did not participate in the alleged illegal and unconstitutional removal of plaintiff- appellant.
The action is primarily against the Society and the past members of the Board who are responsible
for her removal. The present Board of Directors has been implead as party defendant for the purpose
merely of enabling it to act, "to reinstate the plaintiff to her position as Executive Secretary of the
defendant Society" being one of the reliefs prayed for in the prayer of the complaint.
Hence, We hold that where the respondents, except for one, namely, Alberto Romulo, are not actually
holding the office in question, the suit could not be one for quo warranto.
Corollarily, the one-year period fixed in Section 16, Rule 66 of the Revised Rules of Court within
which a petition for quo warranto should be filed, counted from the date of ouster, does not apply to
the case at bar. The action must be brought within four (4) years, in accordance with Valencia vs.
Cebu Portland Cement Co., et al., L-13715, December 23, 1959, 106 Phil. 732, case involving a
plaintiff separated from his employment for alleged unjustifiable causes, where this Court held that

the action n is one for "injury to the rights of the plaintiff, and must be brought within 4 years murder
Article 1146 of the New Civil Code .
Nonetheless, although the action is not barred by the statute of limitations, We rule that it will not
prosper. Contrary to her claim, petitioner was not illegally removed or from her position as Executive
Secretary in violation of Code of By-laws of the Society. the New Civil Code and the pertinent
provisions of the Constitution.
Petitioner claims and the respondents do not dispute that the Executive Secretary is an officer of the
Society pursuant to provision in the Code of By-laws Laws:
Section 7.01. Officers of the Society. The executed officers f the Society shag be the
President a Vice-President, a Treasurer who shall be elected by the Board of Directors,
Executive Secretary, and an Auditor, who shall be appointed by the Board of Directors,
all of whom shall exercise the functions. powers and prerogatives generally vested upon
skich officers, the functions hereinafter set out for their respective offices and such other
duties is from time to time, may be prescribed by the Board of Directors. On e person
may hold more than one office except when the functions thereof are incompatible with
each other.
It is petitioner's contention that she is subject, to removal pursuant to Section 7.04 of the Code of Bylaws which respondents correctly dispute citing Section 7.02 of the same Cede. The aforementioned
provisions state as follows:
Section 7.02. Tenure of Office. All executive officers of the Society except the
Executive Secretary and the Auditor shall be elected the Board of Directors, for a term
of one rear ind shall hold office until their successors are elected and have qualified.
The Executive secretary, the Auditor and all other office ers and employees of the
Society shall hold office at the pleasure of the Board of Directors, unless their term of
employment shall have been fixed in their contract of employment.
xxx xxx xxx
Section 7.04. Removal of Officers and Employees. All officers and employees shall
be subject to suspension or removal for a sufficient cause at any time by affirmative vote
of a majority of an the members of the Board of Directors, except that employees
appointed by the President alone or by the other officers alone at the pleasure of the
officer appointing him.
It appears from the records, specifically the minutes of the special meeting of the Society on August
3, 1972, that petitioner was designated as Acting Executive Secretary with an honorarium of P200.00
monthly in view of the application of Dr. Jose Y. Buktaw for leave effective September 1, 1972 for 300
working days. This designation was formalized in Special Order No. 110, s. 1972 wherein it was
indicated that: "This designation shall take effect on September 1, 1972 and shall remain until further
advice."

In the organizational meeting of the Society on April 25, 1973, the minutes of the meeting reveal that
the Chairman mentioned the need of appointing a permanent Executive Secretary and stated that the
former Executive Secretary, Dr. Jose Y. Buktaw, tendered his application for optional retirement, and
while on terminal leave, Dr. Mita Pardo de Tavera was appointed Acting Executive Secretary. In view
thereof, Don Francisco Ortigas, Jr. moved, duly seconded, that Dr. Mita Pardo de Tavera be
appointed Executive Secretary of the Philippine Tuberculosis Society, Inc. The motion was
unanimously approved.
On April 27, 1973, petitioner was informed in writing of the said appointment, to wit:
Dr. Mita Pardo de Tavera
Philippine Tuberculosis Society, Inc.
Manila
Madam:
I am pleased to inform you that at the meeting of the Board of Directors held on April 25,
1973, you were appointed Executive Secretary, Philippine Tuberculosis Society, Inc.
with such compensation ,petition and allowances as are provided for in the Budget of
the Society, effective immediately, vice Dr. Jose Y. Buktaw, retired.
Congratulations.
Very truly yours,
For the Board of
Directors:
(Sgd) Miguel
Canizares,
M.D. MIGUEL
CARIZARES, M.D.
President
Although the minutes of the organizational meeting show that the Chairman mentioned the need of
appointing a "permanent" Executive Secretary, such statement alone cannot characterize the
appointment of petitioner without a contract of employment definitely fixing her term because of the
specific provision of Section 7.02 of the Code of By-Laws that: "The Executive Secretary, the Auditor,
and all other officers and employees of the Society shall hold office at the pleasure of the Board of
Directors, unless their term of employment shall have been fixed in their contract of employment."
Besides the word permanent" could have been used to distinguish the appointment from acting
capacity".

The absence of a fixed term in the letter addressed to petitioner informing her of her appointment as
Executive Secretary is very significant. This could have no other implication than that petitioner held
an appointment at the pleasure of the appointing power.
An appointment held at the pleasure of the appointing power is in essence temporary in nature. It is
co-extensive with the desire of the Board of Directors. Hence, when the Board opts to replace the
incumbent, technically there is no removal but only an expiration of term and in an expiration of term,
there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be
separated from office. The protection afforded by Section 7.04 of the Code of By-Laws on Removal of
Officers and Employees, therefore, cannot be claimed by petitioner.
Thus, in the case of Moji vs. Mario 13 SCRA 293, where the appointment contains the following
proviso: that it may be terminated at anytime without any proceedings, at the pleasure of the
President of the Philippines, this Court held: "It may, therefore, be said that, though not technically a
temporary appointment, as this term is used in Section 24(b) of the Civil Service Act of 1959,
petitioner's appointment in essence is temporary because of its character that it is terminable at the
pleasure of the appointing power. Being temporary in nature, the appointment can be terminated at a
moment's notice without need to show cause as required in appointments that belong to the classified
service."
In Paragas vs. Bernal 17 SCRA 150, this Court distinguished between removal and expiration of
term .
In the case at bar there has been, however, no removal from office. Pursuant to the
charter of Dagupan City, the Chief of Police thereof holds office at the pleasure of the
President. Consequently, the term of office of the Chief of Police expires at any time that
the President may so declare. This is not removal, inasmuch as the latter entails the
ouster of an incumbent before the expiration of his term. In the present case, petitioner's
term merely expired upon receipt by him of the communication of respondent Assistant
Executive Secretary of the President, dated September 14, 1962.
Petitioner cannot likewise seek relief from the general provisions of the New Civil Code on Human
Relations nor from the fundamental principles of the New Constitution on preservation of human
dignity. While these provisions present some basic principles that are to be observed for the rightful
relationship between human beings and the stability of social order, these are merely guides for
human conduct in the absence of specific legal provisions and definite contractual stipulations. In the
case at bar, the Code of By-Laws of the Society contains a specific provision governing the term of
office of petitioner. The same necessarily limits her rights under the New Civil Code and the New
Constitution upon acceptance of the appointment.
Moreover, the act of the Board in declaring her position as vacant is not only in accordance with the
Code of By-Laws of the Society but also meets the exacting standards of honesty and good faith. The
meeting of May 29, 1974, at which petitioner ,petitioner's position was declared vacant, was caged
specifically to take up the unfinished business of the Reorganizational Meeting of the Board of April
30, 1974. Hence, and act cannot be said to impart a dishonest purpose or some moral obliquity and
conscious doing to wrong but rather emanates from the desire of the Board to reorganize itself.

Finally, We find it unnecessary to resolve the third assignment of error. The proscription against
removal without just cause and due process of law under the Civil Service Law does not have a
bearing on the case at bar for the reason, as We have explained, that there was no removal in her
case but merely an expiration of term pursuant to Section 7.02 of the Code of By-Laws. Hence,
whether or not the petitioner falls within the protective mantle of the Civil Service Law is immaterial
and definitely unnecessary to resolve this case.
WHEREFORE, premises considered, the decision of the lower court holding that petitioner was not
illegally removed or ousted from her position as Executive Secretary of the Philippine Tuberculosis
Society, Inc., is hereby AFFIRMED.
SO ORDERED.

G.R. No. 141309

June 19, 2007

LIWAYWAY VINZONS-CHATO, petitioner,

vs.
FORTUNE TOBACCO CORPORATION, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals in CA-G.R. SP No. 47167, which
affirmed the September 29, 1997 Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in
Civil Case No. 97-341-MK, denying petitioners motion to dismiss. The complaint filed by respondent
sought to recover damages for the alleged violation of its constitutional rights arising from petitioners
issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared invalid
in Commissioner of Internal Revenue v. Court of Appeals.3
Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while
respondent Fortune Tobacco Corporation is an entity engaged in the manufacture of different brands
of cigarettes, among which are "Champion," "Hope," and "More" cigarettes.
On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July
3, 1993. Prior to its effectivity, cigarette brands Champion," "Hope," and "More" were considered local
brands subjected to an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two days
before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and
"More" as locally manufactured cigarettes bearing a foreign brand subject to the 55% ad
valorem tax.4 RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the
provisions of RA 7654, specifically, to Sec. 142, 5 (c)(1) on locally manufactured cigarettes which

are currently classified and taxed at 55%, and which imposes an ad valorem tax of "55% provided
that the minimum tax shall not be less than Five Pesos (P5.00) per pack."6
On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr.
sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it was addressed to no one in particular.
On July 15, 1993, Fortune Tobacco received, by ordinary mail, a certified xerox copy of RMC 37-93.
On July 20, 1993, respondent filed a motion for reconsideration requesting the recall of RMC 37-93,
but was denied in a letter dated July 30, 1993. 7 The same letter assessed respondent for ad
valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and
demanded payment within 10 days from receipt thereof. 8 On August 3, 1993, respondent filed a
petition for review with the Court of Tax Appeals (CTA), which on September 30, 1993, issued an
injunction enjoining the implementation of RMC 37-93. 9 In its decision dated August 10, 1994, the
CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and further enjoined petitioner
from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This ruling was
affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v.
Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen short of the requirements
for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a complaint 11 for damages against petitioner in
her private capacity. Respondent contended that the latter should be held liable for damages under
Article 32 of the Civil Code considering that the issuance of RMC 37-93 violated its constitutional right
against deprivation of property without due process of law and the right to equal protection of the
laws.
Petitioner filed a motion to dismiss12 contending that: (1) respondent has no cause of action against
her because she issued RMC 37-93 in the performance of her official function and within the scope of
her authority. She claimed that she acted merely as an agent of the Republic and therefore the latter
is the one responsible for her acts; (2) the complaint states no cause of action for lack of allegation of
malice or bad faith; and (3) the certification against forum shopping was signed by respondents
counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioners motion to dismiss holding that to rule on the
allegations of petitioner would be to prematurely decide the merits of the case without allowing the
parties to present evidence. It further held that the defect in the certification against forum shopping
was cured by respondents submission of the corporate secretarys certificate authorizing its counsel
to execute the certification against forum shopping. The dispositive portion thereof, states:
WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant
Liwayway Vinzons-Chato and the motion to strike out and expunge from the record the said
motion to dismiss filed by plaintiff Fortune Tobacco Corporation are both denied on the grounds
aforecited. The defendant is ordered to file her answer to the complaint within ten (10) days
from receipt of this Order.
SO ORDERED.13

The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However,
same was dismissed on the ground that under Article 32 of the Civil Code, liability may arise even if
the defendant did not act with malice or bad faith. The appellate court ratiocinated that Section 38,
Book I of the Administrative Code is the general law on the civil liability of public officers while Article
32 of the Civil Code is the special law that governs the instant case. Consequently, malice or bad faith
need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the
defect of the certification against forum shopping was cured by the submission of the corporate
secretarys certificate giving authority to its counsel to execute the same.
Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done
in the performance of her functions as a public officer, hence, it is Section 38, Book I of the
Administrative Code which should be applied. Under this provision, liability will attach only when there
is a clear showing of bad faith, malice, or gross negligence. She further averred that the Civil Code,
specifically, Article 32 which allows recovery of damages for violation of constitutional rights, is a
general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a
special law on the superior public officers liability, such that, if the complaint, as in the instant case,
does not allege bad faith, malice, or gross negligence, the same is dismissible for failure to state a
cause of action. As to the defect of the certification against forum shopping, she urged the Court to
strictly construe the rules and to dismiss the complaint.
Conversely, respondent argued that Section 38 which treats in general the public officers "acts" from
which civil liability may arise, is a general law; while Article 32 which deals specifically with the public
officers violation of constitutional rights, is a special provision which should determine whether the
complaint states a cause of action or not. Citing the case of Lim v. Ponce de Leon,14 respondent
alleged that under Article 32 of the Civil Code, it is enough that there was a violation of the
constitutional rights of the plaintiff and it is not required that said public officer should have acted with
malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad
faith or malice, the motion to dismiss for failure to state a cause of action should be denied inasmuch
as bad faith or malice are not necessary to hold petitioner liable.
The issues for resolution are as follows:
(1) May a public officer be validly sued in his/her private capacity for acts done in connection
with the discharge of the functions of his/her office?
(2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative
Code should govern in determining whether the instant complaint states a cause of action?
(3) Should the complaint be dismissed for failure to comply with the rule on certification against
forum shopping?
(4) May petitioner be held liable for damages?
On the first issue, the general rule is that a public officer is not liable for damages which a person may
suffer arising from the just performance of his official duties and within the scope of his assigned
tasks.15 An officer who acts within his authority to administer the affairs of the office which he/she

heads is not liable for damages that may have been caused to another, as it would virtually be a
charge against the Republic, which is not amenable to judgment for monetary claims without its
consent.16 However, a public officer is by law not immune from damages in his/her personal capacity
for acts done in bad faith which, being outside the scope of his authority, are no longer protected by
the mantle of immunity for official actions. 17
Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there
is bad faith, malice, or gross negligence on the part of a superior public officer. And, under Section 39
of the same Book, civil liability may arise where the subordinate public officers act is characterized by
willfulness or negligence. Thus
Sec. 38. Liability of Superior Officers. (1) A public officer shall not be civilly liable for acts
done in the performance of his official duties, unless there is a clear showing of bad faith,
malice or gross negligence.
xxxx
Section 39. Liability of Subordinate Officers. No subordinate officer or employee shall be
civilly liable for acts done by him in good faith in the performance of his duties. However, he
shall be liable for willful or negligent acts done by him which are contrary to law, morals, public
policy and good customs even if he acts under orders or instructions of his superior.
In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a public officer who directly or
indirectly violates the constitutional rights of another, may be validly sued for damages under Article
32 of the Civil Code even if his acts were not so tainted with malice or bad faith.
Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity
for acts done in the course of the performance of the functions of the office, where said public officer:
(1) acted with malice, bad faith, or negligence; or (2) where the public officer violated a constitutional
right of the plaintiff.
Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and
that the decisive provision thereon is Article 32 of the Civil Code.
A general statute is one which embraces a class of subjects or places and does not omit any subject
or place naturally belonging to such class. A special statute, as the term is generally understood, is
one which relates to particular persons or things of a class or to a particular portion or section of the
state only.19
A general law and a special law on the same subject are statutes in pari materia and should,
accordingly, be read together and harmonized, if possible, with a view to giving effect to both. The
rule is that where there are two acts, one of which is special and particular and the other general
which, if standing alone, would include the same matter and thus conflict with the special act, the
special law must prevail since it evinces the legislative intent more clearly than that of a general
statute and must not be taken as intended to affect the more particular and specific provisions of the

earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at
all.20
The circumstance that the special law is passed before or after the general act does not change the
principle. Where the special law is later, it will be regarded as an exception to, or a qualification of, the
prior general act; and where the general act is later, the special statute will be construed as remaining
an exception to its terms, unless repealed expressly or by necessary implication. 21
Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the Civil Code which holds
provinces, cities, and municipalities civilly liable for death or injuries by reason of defective conditions
of roads and other public works, is a special provision and should prevail over Section 4 of Republic
Act No. 409, the Charter of Manila, in determining the liability for defective street conditions. Under
said Charter, the city shall not be held for damages or injuries arising from the failure of the local
officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing
or attempting to enforce the same. As explained by the Court:
Manila maintains that the former provision should prevail over the latter, because Republic Act
409 is a special law, intended exclusively for the City of Manila, whereas the Civil Code is a
general law, applicable to the entire Philippines.
The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that,
insofar as its territorial application is concerned, Republic Act No. 409 is a special law and the
Civil Code a general legislation; but, as regards the subject matter of the provisions above
quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the
City of Manila for "damages or injury to persons or property arising from the failure of" city
officers "to enforce the provisions of" said Act "or any other law or ordinance, or from
negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or attempting
to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a
particular prescription making "provinces, cities and municipalities . . . liable for damages for
the death of, or injury suffered by, any person by reason" specifically "of the defective
condition of roads, streets, bridges, public buildings, and other public works under their control
or supervision." In other words, said section 4 refers to liability arising from negligence,
in general, regardless of the object thereof, whereas Article 2189 governs liability due to
"defective streets," in particular. Since the present action is based upon the alleged
defective condition of a road, said Article 2189 is decisive thereon.23
In the case of Bagatsing v. Ramirez,24 the issue was which law should govern the publication of a tax
ordinance, the City Charter of Manila, a special act which treats ordinances in general and which
requires their publication before enactment and after approval, or the Tax Code, a general law, which
deals in particular with "ordinances levying or imposing taxes, fees or other charges," and which
demands publication only after approval. In holding that it is the Tax Code which should prevail, the
Court elucidated that:
There is no question that the Revised Charter of the City of Manila is a special act since it
relates only to the City of Manila, whereas the Local Tax Code is a general law because it
applies universally to all local governments. Blackstone defines general law as a universal rule

affecting the entire community and special law as one relating to particular persons or things of
a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a
subsequent general law. The fact that one is special and the other general creates a
presumption that the special is to be considered as remaining an exception of the general, one
as a general law of the land, the other as the law of a particular case. However, the rule
readily yields to a situation where the special statute refers to a subject in general,
which the general statute treats in particular. Th[is] exactly is the circumstance
obtaining in the case at bar. Section 17 of the Revised Charter of the City of Manila
speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof,
whereas, Section 43 of the Local Tax Code relates to "ordinances levying or imposing
taxes, fees or other charges" in particular. In regard, therefore, to ordinances in general,
the Revised Charter of the City of Manila is doubtless dominant, but, that dominant
force loses its continuity when it approaches the realm of "ordinances levying or
imposing taxes, fees or other charges" in particular. There, the Local Tax Code
controls. Here, as always, a general provision must give way to a particular provision. Special
provision governs.
Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides:
ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates, or in any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter for damages:
xxxx
(6) The right against deprivation of property without due process of law;
xxxx
(8) The right to the equal protection of the laws;
xxxx
The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows:
"DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that
Article 32 be so amended as to make a public official liable for violation of another persons
constitutional rights only if the public official acted maliciously or in bad faith. The Code
Commission opposes this suggestion for these reasons:
"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary
therefore that there should be malice or bad faith. To make such a requisite would defeat the
main purpose of Article 32 which is the effective protection of individual rights. Public officials in
the past have abused their powers on the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of the Article is to put an end to official abuse
by the plea of good faith. In the United States this remedy is in the nature of a tort.

"Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil
Code to implement democracy. There is no real democracy if a public official is abusing and
we made the article so strong and so comprehensive that it concludes an abuse of individual
rights even if done in good faith, that official is liable. As a matter of fact, we know that there
are very few public officials who openly and definitely abuse the individual rights of the citizens.
In most cases, the abuse is justified on a plea of desire to enforce the law to comply with ones
duty. And so, if we should limit the scope of this article, that would practically nullify the object
of the article. Precisely, the opening object of the article is to put an end to abuses which are
justified by a plea of good faith, which is in most cases the plea of officials abusing individual
rights."25
The Code Commission deemed it necessary to hold not only public officers but also private
individuals civilly liable for violation of the rights enumerated in Article 32 of the Civil Code. It is not
necessary that the defendant under this Article should have acted with malice or bad faith, otherwise,
it would defeat its main purpose, which is the effective protection of individual rights. It suffices that
there is a violation of the constitutional right of the plaintiff. 26
Article 32 was patterned after the "tort" in American law.27 A tort is a wrong, a tortious act which has
been defined as the commission or omission of an act by one, without right, whereby another
receives some injury, directly or indirectly, in person, property, or reputation. 28 There are cases in
which it has been stated that civil liability in tort is determined by the conduct and not by the mental
state of the tortfeasor, and there are circumstances under which the motive of the defendant has
been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental
attitude of the alleged wrongdoer, and not the act itself, would determine whether the act was
wrongful.29 Presence of good motive, or rather, the absence of an evil motive, does not render lawful
an act which is otherwise an invasion of anothers legal right; that is, liability in tort is not precluded by
the fact that defendant acted without evil intent. 30
The clear intention therefore of the legislature was to create a distinct cause of action in the nature of
tort for violation of constitutional rights, irrespective of the motive or intent of the defendant. 31 This is a
fundamental innovation in the Civil Code, and in enacting the Administrative Code pursuant to the
exercise of legislative powers, then President Corazon C. Aquino, could not have intended to
obliterate this constitutional protection on civil liberties.
In Aberca v. Ver,32 it was held that with the enactment of Article 32, the principle of accountability of
public officials under the Constitution acquires added meaning and assumes a larger dimension. No
longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates,
secure in the thought that he does not have to answer for the transgressions committed by the latter
against the constitutionally protected rights and liberties of the citizen. Part of the factors that
propelled people power in February 1986 was the widely held perception that the government was
callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it
would certainly be too naive to expect that violators of human rights would easily be deterred by the
prospect of facing damage suits, it should nonetheless be made clear in no uncertain terms that
Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for
the transgression, joint tortfeasors.

On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the
civil liability of superior and subordinate public officers for acts done in the performance of their
duties. For both superior and subordinate public officers, the presence of bad faith, malice, and
negligence are vital elements that will make them liable for damages. Note that while said provisions
deal in particular with the liability of government officials, the subject thereof is general, i.e., "acts"
done in the performance of official duties, without specifying the action or omission that may give rise
to a civil suit against the official concerned.
Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of
an "act" that may give rise to an action for damages against a public officer, and that is, a tort for
impairment of rights and liberties. Indeed, Article 32 is the special provision that deals specifically with
violation of constitutional rights by public officers. All other actionable acts of public officers are
governed by Sections 38 and 39 of the Administrative Code. While the Civil Code, specifically, the
Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific
provision that holds a public officer liable for and allows redress from a particular class of wrongful
acts that may be committed by public officers. Compared thus with Section 38 of the Administrative
Code, which broadly deals with civil liability arising from errors in the performance of duties, Article 32
of the Civil Code is the specific provision which must be applied in the instant case precisely filed to
seek damages for violation of constitutional rights.
The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad
faith and malice are not necessary in an action based on Article 32 of the Civil Code, the failure to
specifically allege the same will not amount to failure to state a cause of action. The courts below
therefore correctly denied the motion to dismiss on the ground of failure to state a cause of action,
since it is enough that the complaint avers a violation of a constitutional right of the plaintiff.
Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission
of the secretarys certificate authorizing the counsel to sign and execute the certification against
forum shopping cured the defect of respondents complaint. Besides, the merits of the instant case
justify the liberal application of the rules.33
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals
dated May 7, 1999 which affirmed the Order of the Regional Trial Court of Marikina, Branch 272,
denying petitioners motion to dismiss, is AFFIRMED. The Presiding Judge, Regional Trial Court of
Marikina, Branch 272, is herebyDIRECTED to continue with the proceedings in Civil Case No. 97341-MK with dispatch.
With costs.
SO ORDERED.

G.R. No. 122166 March 11, 1998

CRESENTE Y. LLORENTE, JR., petitioner,

vs.
SANDIGANBAYAN and LETICIA G. FUERTES, respondents.

PANGANIBAN, J.:
In a prosecution for violation of Section 3[e] of the Anti-Graft Law, that is, "causing undue injury
to any party," the government prosecutors must prove "actual" injury to the offended party;
speculative or incidental injury is not sufficient.
The Case
Before us is a petition for review of the Decision promulgated on June 23, 1995 and the
Resolution promulgated on October 12, 1995 of the Sandiganbayan in Criminal Case No.
18343, finding Cresente Y. Llorente, Jr. guilty as charged.
Llorente, then municipal mayor of Sindangan, Zamboanga del Norte, was charged with
violation of Sec. 3[e] of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, under an Information dated October 22, 1992, textually reproduced as follows: 1
That in or about and during the period of July, 1990 to October, 1991, or for sometime
subsequent thereto, in the Municipality of Sindangan, Province of Zamboanga del
Norte, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused Cresente Y. Llorente, Jr., a public officer, being then the Mayor of Sindangan,
Zamboanga del Norte, in the exercise of his official and administrative functions, did
then and there, willfully, unlawfully and criminally with evident bad faith refuse to sign
and approve the payrolls and vouchers representing the payments of the salaries and
other emoluments of Leticia G. Fuertes, without just valid cause and without due
process of law, thereby causing undue injury to the said Leticia G. Fuertes.
CONTRARY TO LAW.
Duly arraigned on March 29, 1993, petitioner, with the assistance of counsel, entered a plea of
"NOT GUILTY."2 After trial in due course, the Sandiganbayan 3 rendered the assailed Decision,
disposing as follows:4
WHEREFORE, judgment is hereby rendered finding accused Mayor Cresente Y.
Llorente, Jr. GUILTY beyond reasonable doubt as principal of the crime of Violation of
Section 3(e) of Republic Act 3019, as amended, and he is hereby sentenced to suffer
imprisonment of SIX (6) YEARS and ONE (1) MONTH, as minimum to SEVEN (7)
YEARS, as maximum; to further suffer perpetual disqualification from public office; and
to pay the costs.
Respondent Court denied the subsequent motion for reconsideration in the assailed
Resolution thus:5
WHEREFORE, accused's "Motion for Reconsideration and/or New Trial" is hereby
DENIED for lack of merit. His "Motion for Marking of Additional Exhibits Cum Offer of
Documentary Exhibits in Support of Motion for Reconsideration and/or New Trials' is
now rendered moot and academic.

Hence, this petition.6

The Facts
Version of the Prosecution
As found by Respondent Court, the prosecution's version of the facts of this case is as
follows:7
After appreciating all the evidence on both sides, the following uncontroverted facts may
be gleaned:
1. Accused Mayor Cresente Y. Llorente, Jr., at the time the alleged act was committed,
was the Municipal Mayor of Sindangan, Zamboanga del Norte.
2. Private [C]omplainant, Leticia C. Fuertes, is the duly appointed Assistant Municipal
Treasurer in the same municipality since October 18, 1985.
3. Starting 1986, private complainant was detailed to different offices, as follows:
(a) Municipality of Katipunan, Zamboanga del Norte from April, 1986 to
August, 1987 as OIC Municipal Treasurer.
(b) Municipality of Roxas, Zamboanga del Norte from September, 1987
to March, 1988 as OIC Municipal Treasurer.
(c) Office of the Provincial Treasurer of Zamboanga del Norte from
April, 1988 to May, 1988.
(d) Municipality of Pian, Zamboanga del Norte from June, 1988 to
June, 1990 as OIC Municipal Treasurer.
4. In July, 1990, she was returned to her post as Assistant Municipal Treasurer in the
town of Sindangan.
She was not provided with office table and chair nor given any assignment; neither her
daily time record and application for leave acted upon by the municipal treasure per
instruction of accused Mayor (Exh. "G-2"; "G-3").
5. On July 23, 1990, the Sangguniang Bayan of Sindangan, Zamboanga del Norte,
presided by accused Mayor, passed Resolution No. SB-214 (Exh. "3"), vehemently
objecting to the assignment of complainant as Assistant Municipal Treasurer of
Sindangan.
6. On March 12, 1991, accused Municipal Mayor received a letter (SB Resolution No.
36) from the Sangguniang Bayan of the Municipality of Pian, demanding from the
private complainant return of the amount overpaid to her as salaries (par. 9, p. 2 of Exh.
"4" counter-affidavit of accused Mayor).
7. On May 22, 1991, private complainant filed a Petition for Mandamus with Damages
(Exh. "E") against the accused Mayor and the Municipality of Sindangan before Branch

II, Regional Trial Court of Sindangan, Zamboanga del Norte docketed as Special
Proceedings No. 45, for the alleged unjustified refusal of Mayor Llorente to sign and/or
approve her payrolls and/or vouchers representing her salaries and other emoluments
as follows: (a) salary for the month of June, 1990 in the amount of P5,452.00 under
disbursement voucher dated September 5, 1990 (Exh. "H"). Although complainant
rendered services at the municipality of Pian during this period, she could not collect
her salary there considering that as of that month, Pian had already appointed an
Assistant Municipal Treasurer. When she referred the matter to the Provincial Auditor,
she was advised to claim her salary for that month with her mother agency, the
Municipality of Sindangan, [(]p. 12, TSN of August 9, 1994; 10th paragraph of
complainant's Supplemental Affidavit marked Exh. "G"); (b) salary differential for the
period from July 1, 1989 to April 30, 1990 in the total amount of P19,480.00 under
disbursement voucher dated August, 1990 (Exh. "I"); (c) 13th month pay, cash gift and
clothing allowance under Supplemental Budget No. 5, CY 1990 in the total amount of
P7,275 per disbursement voucher dated December 4, 1990 (Exh. "J"); (d) vacation
leave commutation for the period from October to December 31, 1990 in the total
amount of P16,356.00 per disbursement voucher dated December 3, 1990 (Exh. "K");
(e) RATA for the months of July, August and September, 1990, January and February,
1991 in the total amount of P5,900.00 (par. 12 & 16 of Exh. "E"); and (f) salaries for
January and February, 1991 in the total amount of P10,904.00 (par. 17 of Exh. "E").
8. Accused Mayor did not file an answer; instead, he negotiated for an amicable
settlement of the case (p. 24, TSN of August 10, 1994). Indeed, a Compromise
Agreement (Exh. "A") dated August 27, 1991, between the accused and private
complainant was submitted to and approved by the court, hereto quoted as follows:
COMPROMISE AGREEMENT
That the parties have agreed, as they hereby agree, to settle this case amicably on the
basis of the following terms and conditions, to wit:
(a) That the respondent Mayor Cresente Y. Llorente, Jr. binds himself to
sign and/or approve all vouchers and/or payrolls for unpaid salaries,
RATA, Cash-gifts, 13th month pay, clothing allowance, salary differentials
and other emoluments which the petitioner is entitled as Assistant
Municipal Treasurer of Sindangan, Zamboanga del Norte;
(b) That the parties herein hereby waive, renounce and relinquish their
other claims and counter-claims against each other;
(c) That the respondent Mayor Cresente Y. Llorente Jr. binds himself to
sign and/or approve all subsequent vouchers and payrolls of the herein
petitioner.
9. On August 27, 1991, a Decision (Exh. "B") was rendered by Judge Wilfredo
Ochotorena on the basis of the aforesaid compromise agreement.
10. For his failure to comply with the terms of the compromise agreement, private
complainant, thru counsel, filed a Motion for Execution on September 12, 1991. A Writ
of Execution (Exh. "C") was issued by the Court on September 17, 1991, and served
[on] the accused on September 23,1991.

11. As shown in the Sheriff's Return dated November 19, 1991 (Exh. "D"), private
complainant was paid her salaries for the period from January, 1991 to August, 1991,
while the rest of her salaries including the RATA and other emoluments were not paid
considering the alleged need of a supplemental budget to be enacted by the
Sangguniang Bayan of Sindangan per verbal allegation of the municipal treasurer.
12. Complainant was not also paid her salaries from July to December 1990;
September and October, 1991; RATA for the period from July 1990 to June 1994
(admission of accused, pp. 8-9, TSN of June 27, 1994, a.m.; Exh. "E"; p. 17, TSN of
June 27, 1994).
13. Sometime in 1993, accused municipal mayor received from the Municipality of
Pian, Bill No. 93-08 (Exh. "1"), demanding from the Municipality of Sindangan
settlement of overpayment to complainant Fuertes in the amount of P50,643.93 per SE
Resolution No. 6 sent on July 23, 1990. The bill was settled by the Municipality of
Sindangan in December, 1993 per Disbursement Voucher No. 101-9312487 dated
December 2, 1993 (Exh. "2").
14. Private complainant was able to receive complete payment of her claims only on
January 4, 1993 in the form of checks all dated December 29, 1992 (as appearing on
Exhs. "H", "I", "J", "K" of the prosecution, Exhs. "6", "7", "8", of the defense) except her
RATA which was given to her only on July 25, 1994, covering the period from July 1990
to December, 1993 amounting to P55,104.00, as evidenced by Disbursement Voucher
dated July 25, 1994 (Exh. "5").
Version of the Defense
While admitting some delays in the payment of the complainant's claims, petitioner sought to
prove the defense of good faith that the withholding of payment was due to her failure to
submit the required money and property clearance and to the Sangguniang Bayan's delayed
enactment of a supplemental budget to cover the claims. He adds that such delays did not
result in "undue injury" to complainant. In his memorandum, petitioner restates the facts as
follows:8
1. Complainant . . . was appointed assistant municipal treasurer of Sindangan,
Zamboanga del Norte on October 18, 1985. However, starting 1986 until July 1990, or
for a period of about four (4) and one half (1/2) years, she was detailed in other
municipalities and in the Office of the Provincial Treasurer of Zamboanga del Norte. She
returned as assistant treasurer of Sindangan in July 1990. (Decision, pp. 5-6).
2. As complainant had been working in municipalities and offices other than in
Sindangan for more than four (4) years, her name was removed from the regular payroll
of Sindangan, and payment of past salaries and other emoluments had to be done by
vouchers. When complainant . . . presented her vouchers to petitioner, the latter
required her to submit clearances from the different offices to which she was detailed,
as well as a certificate of last payment as required by COA regulations (Tsn, p. 11, Aug.
10, 1994). Instead of submitting the required documents, Mrs. Fuertes said that "what I
did, endorsed my voucher to the mayor through the municipal treasurer" (Tsn, p. 13,
June 27, 1994). The municipal treasurer could not, however, process the vouchers and
certify as to the availability of funds until after the Sangguniang Bayan had passed a
supplemental budget for the purpose (Exhs. D and 6-c Motion), which came only in
December 1992.

3. Petitioner, in the meanwhile, received on March 12, 1991 SB Resolution No. 36 from
the Municipality of Pian, demanding from Mrs. . . . Fuertes the reimbursement of
P105,915.00, and because of this demand, he needed time to verify the matter before
acting on Mrs. Fuertes' claims (Exh. 4). Mrs. Fuertes admitted that she had at the time
problems of accountability with the Municipality of Pinan. She testified.
Q. Counsel now is asking you, when you went back to
Sindangan there was [sic] still problems of the claims either
against you or against the Municipality of Sindangan by the
municipalities had, [sic] in their minds, overpaid you?
A. Yes, your Honor, that was evidence[d] by the bill of the
Municipality of Pinan to the Municipality of Sindangan. (Tsn,
p. 18, Aug. 3, 1994).
4. Petitioner also stated that he could not act on complainant's claims because she had
not submitted the required money and property accountability clearance from Pinan
(Tsn, 11, Aug. 10, 1994) and that at the time the Sangguniang Bayan had not
appropriated funds for the purpose. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).
Nonetheless, petitioner included Mrs. Fuertes' name in the regular annual budget
beginning 1991 (Exhs. 4-b, 4-d, 4-f), as a result of which she had been since then
receiving her regular monthly salary.
5. On May 21, 1991, Mrs. Fuertes filed a complaint . . . Petitioner filed his answer to the
complaint, alleging as a defense, that plaintiff did not exhaust administrative remedies.
(Annex B, p. 3, Petition; Exh. 1-Motion). On August 27, 1991, the parties entered into a
compromise agreement, which the trial court approved (Exh. B). . . .
6. Upon motion of counsel for Mrs. Fuertes, the trial court issued a writ of execution of
the compromise judgment. However, the writ of execution was addressed only to
petitioner; it was not served on the municipal Sangguniang Bayan. . . .
Thus, Mrs. Fuertes had been receiving her regular salary from January, 1991 because
petitioner had included her name in the regular budget beginning 1991, which fact
complainant did not dispute. With respect to her other claims for past services in other
offices, Municipal Treasurer; Mrs. Narcisa Caber, informed that a supplemental budget
for such purpose to be passed by the Sangguniang Bayan was necessary before she
could be paid thereof. Being the municipal treasurer, Mrs. Caber knew that without such
supplemental budget, payment of Mrs. Fuertes' other claims could not be made
because the law requires that "disbursements shall be made in accordance with the
ordinance authorizing the annual or supplemental appropriations" (Sec. 346, RA 7160)
and that "no money shall be disbursed unless . . . the local treasurer certifies to the
availability of funds for the purpose." (Sec. 344, RA 7160).
7. Petitioner had instructed the municipal budget officer to prepare the supplemental
budget for payment of complainant's unpaid claims for submission to the Sangguniang
[Bayan] for enactment. (Tsn, pp. 32-33, Aug. 10, 1994). The budget officer, Mr. Narciso
Siasico stated as follows:
1. I am the budget officer for the Municipality of Sindangan, Zamboanga
del Norte, a position I have held since 1981.

xxx

xxx

xxx

3. Immediately after said mandamus case was settled through a

compromise agreement, Mayor Llorente instructed me to prepare the
necessary budget proposals for the deliberation and approval of the
Sangguniang Bayan;
xxx

xxx

xxx

8. Instead of waiting for the Sangguniang Bayan to enact the budget or of securing
an alias writ of execution to compel the Sangguniang Bayan to pass the same, Mrs.
Fuertes filed a criminal complaint with the Office of the Ombudsman under date of
October 28, 1991, admitting receipt of her salaries from January 1991 and saying she
had not been paid her other claims in violation of the compromise judgment. (Exh. F).
She had thus made the Office of the Ombudsman a collecting agency to compel
payment of the judgment obligation.
9. While the budget proposal had been prepared and submitted to the Sangguniang
Bayan for action, it took time for the Sangguniang Bayan to pass the supplemental
budget and for the Provincial Board to approve the same. It was only on December 27,
1992 that the municipal treasurer and the municipal accountant issued a certification of
availability of funds for the purpose. Petitioner approved the vouchers immediately, and
in a period of one week, Mrs. Fuertes was paid all claims, as evidenced by the
prosecution's Exhs. H, I, J and K, which were the four vouchers of Mrs. Fuertes, . . . .
xxx

xxx

xxx

11. Petitioner testified that he could not immediately sign or approve the vouchers of
Mrs. Fuertes for the following reasons:
a) The Sangguniang Bayan had not appropriated the amounts to pay Mrs.
Fuertes. (Tsn, pp. 18, 30, 42-43, Aug. 10, 1994).
b) Municipal Treasurer Caber, to whom Mrs. Fuertes endorsed her
vouchers for processing, and the Municipal Accountant issued the
certificate of availability of funds only on December 27, 1992 (Tsn, p. 42,
Aug. 10, 1994; Exhs. H, I, J and K); and the delay in the issuance of the
certificate of availability of funds was due to the delay by the Provincial
Board to approve the supplemental budget. (Tsn, p. 43, Aug. 10, 1994).
[c]) He received on March 12, 1991 a demand from the Municipality of
Pinan, Zamboanga del Norte, where Mrs. Fuertes last worked, for the
reimbursement of P105,915.00, and the matter had to be clarified first.
(Exh. 4). Mrs. Fuertes admitted that she had some problem of
accountability with the Municipality of Pinan. (Tsn, p. 18, 1994). It took
time before this matter could be clarified by the Municipality of Pinan
reducing its claim to P50,647.093 and the Municipality of Sindangan
paying said claim. (Exh. 2; Decision, p. 9).
[d]) Mrs. Fuertes had not submitted the required clearance from the
Municipality of Pinan. (Tsn, p. 11, Aug. 10, 1994). He did not insist on this
requirement after the trial court issued the writ of execution to implement

the compromise judgment. (Tsn, p. 23, Aug. 10, 1994). Nonetheless, in the
post audit of Mrs. Fuertes' accountability, the Commission on Audit issued
a notice of suspension of the amount of P5,452.00 from Mrs. Fuertes for
her failure to submit: "1. Clearance for money & property accountability
from former office. 2. Certification as [sic] last day of service in former
office. 3. Certification of last salary received & issued by the disbursing
officer in former office, certified by chief accountant and verified by
resident auditor." (Exh. 2-Motion).
12. The Information dated October 12, 1992 filed against petitioner alleged that
petitioner as mayor did not sign and approve the vouchers of Mrs. Fuertes for payment
of her salaries and other emoluments from July 1, 1990 to October 1991, which caused
her undue injury. However, the prosecution's Exh. "D", the sheriff's return dated
November 19, 1991, stated that Mrs. Fuertes had received her salary from January 1,
1991 "up to the present", which meant that even before the information was filed, she
had been paid her regular salaries from January 1, 1991 to October 1991. The
supplemental budget to cover payment of her other claims for past services was passed
only in December 1992 and the municipal treasurer and accountant issued the
certificate of availability of funds only on December 27, 1992, and Mrs. Fuertes got paid
of [sic] all her other claims, including those not claimed in the Information, within one
week therefrom. (Exhs. H, I, J, and K).
xxx

xxx

xxx

Ruling of the Sandiganbayan

Respondent Court held that the delay or withholding of complainant's salaries and emoluments
was unreasonable and caused complainant undue injury. Being then the sole breadwinner in
their family, the withholding of her salaries caused her difficulties in meeting her family's
financial obligations like paying for the tuition fees of her four children. Petitioner's defense that
complainant failed to attach the required money and property clearance to her vouchers was
held to be an afterthought that was brought about, in the first place, by his own failure to issue
any memorandum requiring its submission. That the voucher form listed the clearance as one
of the requirements for its approval had neither been brought to complainant's attention nor
raised by petitioner as defense in his answer. In any event, the payment of complainant's
salary from January to November 1991, confirmed by the sheriff's return, showed that the
clearance was not an indispensable requirement, because petitioner could have acted upon or
approved the disbursement even without it. The alleged lack of a supplemental budget was
also rejected, because it was petitioner's duty as municipal mayor to prepare and submit the
"executive and supplemental budgets" under Sections 318, 320, and 444 (3)(ii) of the Local
Government Code,9 and the complainant's claims as assistant municipal treasurer, a
permanent position included in the plantilla for calendar year 1990 and 1991, were classified
as "current operating expenditures" for the same calendar years, which were chargeable
against the general funds of the town of Sindangan. Except for the representation and
transportation allowance, Fuertes' claims for thirteenth month pay, cash gift and clothing
allowance were already covered by Supplemental Budget No. 5 for calendar year 1990.
Petitioner's contention that funds covering complainant's claims were made available only in
December 1992 was unbelievable, considering that an ordinance enacting a supplemental
budget takes effect upon its approval or on the date fixed therein under Sec. 320 of the Local
Government Code.

The Sandiganbayan also ruled that the petitioner's evident bad faith was the direct and
proximate cause of Fuertes' undue injury. Complainant's salaries and allowances were
withheld for no valid or justifiable reasons. Such delay was intended to harass complainant,
because petitioner wanted to replace her with his political protege whom he eventually
designated as municipal treasurer, bypassing Fuertes who was next in seniority. Bad faith was
further evidenced by petitioner's instructions to the outgoing municipal treasurer not to give the
complaining witness any work assignment, not to provide her with office table and chair, not to
act on her daily time record and application for leave of absence, instructions which were
confirmed in the municipal treasurer's certification. (Exh. G-2).
The Issues
In his memorandum, petitioner submits the following issues: 10
1. Could accused be held liable under Sec. 3(e) of R.A. 3019 "in the discharge of his
official administrative duties", a positive act, when what was imputed to him was failing
and refusing to sign and/or approve the vouchers of Mr[s]. Fuertes on time or by
"inaction on his obligation under the compromise agreement" (ibid., p. 19), a passive
act? Did not the act come under Sec. 3(f) of R.A. 3019, of [sic] which accused was not
charged with?
2. Assuming, arguendo, that his failure and refusal to immediately sign and approve the
vouchers of Mrs. Fuertes comes [sic] under Sec. 3(e), the questions are:
(a) Did not the duty to sign and approve the same arise only after the
Sangguniang Bayan had passed an appropriations ordinance, and not
before? In other words, was the non-passage of the appropriation
ordinance a justifiable reason for not signing the vouchers?
(b) Did Mrs. Fuertes suffer undue injury, as the term is understood in Sec.
3(e), she having been paid all her claims?
(c) Did petitioner not act in good faith in refusing to immediately sign the
vouchers and implement the compromise agreement until the
Sangguniang Bayan had enacted the appropriation ordinance and until
Mrs. Fuertes submitted the clearance from the Municipality of Pinan,
Zamboanga del Norte?
Restated, petitioner claims that the prosecution failed to establish the elements of undue injury
and bad faith. Additionally, petitioner submits that a violation of Section 3[e] of RA 3019 cannot
be committed through nonfeasance.
The Court's Ruling
The petition is meritorious. After careful review of the evidence on record and thorough
deliberation on the applicable provision of the Anti-Graft Law, the Court agrees with the
solicitor general's assessment that the prosecution failed to establish the elements of the crime
charged.
First Issue: Undue Inquiry
Petitioner was charged with violation of Section 3[e] of R.A. 3019, which states:

Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public

officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful:
xxx

xxx

xxx

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or permits or
other concessions.
To hold a person liable under this section, the concurrence of the following elements must be
established beyond reasonable doubt by the prosecution:
(1) that the accused is a public officer or a private person charged in conspiracy with the
former;
(2) that said public officer commits the prohibited acts during the performance of his or
her official duties or in relation to his or her public positions;
(3) that he or she causes undue injury to any party, whether the government or a private
party; and
(4) that the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence.11
The solicitor general, in his manifestation,12 points out that "undue injury" requires proof of
actual injury or damage, citing our ruling in Alejandro vs. People13 and Jacinto
vs. Sandiganbayan.14 Inasmuch as complainant was actually paid all her claims, there was
thus no "undue injury" established.
This point is well-taken. Unlike in actions for torts, undue injury in Sec. 3[e] cannot be
presumed even after a wrong or a violation of a right has been established. Its existence must
be proven as one of the elements of the crime. In fact, the causing of undue injury or the giving
of any unwarranted benefits, advantage or preference through manifest partiality, evident bad
faith or gross inexcusable negligence constitutes the very act punished under this section.
Thus, it is required that the undue injury be specified, quantified and proven to the point of
moral certainty.
In jurisprudence, "undue injury" is consistently interpreted as "actual damage." Undue has
been defined as "more than necessary, not proper, [or] illegal;" and injury as "any wrong or
damage done to another, either in his person, rights, reputation or property[; that is, the]
invasion of any legally protected interest of another." Actual damage, in the context of these
definitions, is akin to that in civil law.15
In turn, actual or compensatory damages is defined by Article 2199 of the Civil Code as
follows:

Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate

compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Fundamental in the law on damages is that one injured by a breach of a contract, or by
a wrongful or negligent act or omission shall have a fair and just compensation commensurate
to the loss sustained as a consequence of the defendant's act. Actual pecuniary compensation
is awarded as a general rule, except where the circumstances warrant the allowance of other
kinds of damages.16 Actual damages are primarily intended to simply make good or replace the
loss caused by the wrong.17
Furthermore, damages must not only be capable of proof, but must be actually proven with a
reasonable degree of certainty. They cannot be based on flimsy and non-substantial evidence
or upon speculation, conjecture or guesswork. 18 They cannot include speculative damages
which are too remote to be included in an accurate estimate of the loss or injury.
In this case, the complainant testified that her salary and allowance for the period beginning
July 1990 were withheld, and that her family underwent financial difficulty which resulted from
the delay in the satisfaction of her claims.19 As regards her money claim, payment of her
salaries from January 1991 until November 19, 1991 was evidenced by the Sheriffs Return
dated November 19, 1991 (exh. D). She also admitted having been issued a check on January
4, 1994 to cover her salary from June 1 to June 30, 1990; her salary differential from July 1,
1989 to April 30, 1990; her thirteenth-month pay; her cash gift; and her clothing allowances.
Respondent Court found that all her monetary claims were satisfied. After she fully received
her monetary claims, their is no longer any basis for compensatory damages or undue injury,
their being nothing more to compensate.
Complainant's testimony regarding her family's financial stress was inadequate and largely
speculative. Without giving specific details, she made only vague references to the fact that
her four children were all going to school and that she was the breadwinner in the family. She,
however, did not say that she was unable to pay their tuition fees and the specific damage
brought by such nonpayment. The fact that the "injury" to her family was unspecified or
unquantified does not satisfy the element of undue injury, as akin to actual damages. As in civil
cases, actual damages, if not supported by evidence on record, cannot be considered. 20
Other than the amount of the withheld salaries and allowances which were eventually
received, the prosecution failed to specify and to prove any other loss or damage sustained by
the complainant. Respondent Court insists that complainant suffered by reason of the "long
period of time" that her emoluments were withheld.
This inconvenience, however, is not constitutive of undue injury. In Jacinto, this Court held that
the injury suffered by the complaining witness, whose salary was eventually released and
whose position was restored in the plantilla, was negligible; undue injury entails damages that
are more than necessary or are excessive, improper or illegal. 21 In Alejandro, the Court held
that the hospital employees were not caused undue injury, as they were in fact paid their
salaries.22
Second Issue: No Evident Bad Faith
In the challenged Decision, Respondent Court found evident bad faith on the part of the
petitioner, holding that, without any valid of justifiable reason, accused withheld the payment of
complainant's salaries and other benefits for almost two (2) years, demonstrating a clear

manifestation of bad faith.23 It then brushed aside the petitioner's defenses that complainant
failed to submit money and property clearances for her vouchers, and that an appropriation by
the Sangguniang Bayan was required before complainant's vouchers could be approved. It
said:24
Secondly, his reliance on the failure of complainant to submit the clearances which were
allegedly necessary for the approval of vouchers is futile in the light of the foregoing
circumstances:
xxx

xxx

xxx

b. The evidence on record shows that complainant's salaries for the period from
January to November 1991 (included as subject matter in the mandamus case) were
duly paid, as confirmed in the Sheriff's Return dated November 19, 1991 (Exh. "D").
This means that accused, even without the necessary clearance, could have acted
upon or approved complainant's disbursement vouchers if he wanted to.
c. It may be true that a clearance is an indispensable requirement before complainant
will be paid of her claims, but accused could not just hide behind the cloak of the
clearance requirement in order to exculpate himself from liability. As the approving
officer, it was his duty to direct complainant to submit the same. Moreover, accused
could not just set aside the obligation he voluntarily imposed upon himself when he
entered into a compromise agreement binding himself to sign complainant's vouchers
without any qualification as to the clearance requirement. Perforce, he could have seen
to it that complainant secured the same in order that he could comply with the said
obligation.
xxx

xxx

xxx

Fourthly, accused's contention that the delay in the release of complainant's claim could
not be attributed to him because the vouchers were only submitted to him for his
signature on December 24-27, 1992; that the approval of the budget
appropriations/resolutions depends on the Sangguniang Bayan, Budget Officer and the
Sangguniang Panlalawigan, is unavailing.
As revealed in the alleged newly discovered evidence themselves, particularly . . . SB
Res. No. 202 and Appropriation Ordinance No. 035, both dated May 21, 1990 (Exh. "5a"- Motion), the Sangguniang Bayan appropriated a budget of P5M in the General Fund
for calendar year 1991 [the Budget Officer does not approve the budget but assists the
Municipal Mayor and the Sangguniang Bayan in the preparation of the budget (Sec.
475, Local Government Code of 1991)]. Complainant's claims consisted of her salaries
and other benefits for 1990 and 1991 which were classified as Current Operating
Expenditures chargeable against the General Fund. It is undisputed that she was
holding her position as Assistant Municipal Treasurer in a permanent capacity (her
position was also designated Assistant Department Head), which was included in the
plantilla for calender years 1990 and 1991 (Exhs. "4-a" & "4-b", Motion). In Program
Appropriation and Obligation by Object (Exhs. "4-c" & "4-c", Motion), appropriations
were made for current operating expenditures to which complainant's claims properly
appertained. . . . Verily, complainant's claims were covered by appropriations duly
approved by the officials concerned, signifying that adequate funds were available for
the purpose. In fact, even complainant's claims for her 13th month pay, cash gift and
clothing allowance, subject matter of Disbursement Voucher marked Exhibit "J" which

would need a supplemental budget was covered by "Supplemental Budget No. 5 for CY
1990 duly approved by the authorities concerned" as shown in the voucher itself. This
means that the said claim was already obligated (funds were already reserved for it) as
of calendar year 1990. . . . It is clear, then, that as regards availability of funds, there
was no obstacle for the release of all the complainant's claims.
The Court disagrees. Respondent Court cannot shift the blame on the petitioner, when it was
the complainant who failed to submit the required clearance. This requirement, which the
complainant disregarded, was even printed at the back of the very vouchers sought to be
approved. As assistant municipal treasurer, she ought to know that this is a condition for the
payment of her claims. This clearance is required by Article 443 of the Implementing Rules and
Regulations of the Local Government Code of 1991:
Art. 443. Property Clearances When an employee transfers to another government
office, retires, resigns, is dismissed, or is separated from the service, he shall be
required to secure supplies or property clearance from the supply officer concerned, the
provincial or city general services officer concerned, the municipal mayor and the
municipal treasurer, or the punong barangay and the barangay treasurer, as the case
may be. The local chief executive shall prescribe the property clearance form for this
purpose.
For her own failure to submit the required clearance, complainant is not entirely blameless for
the delay in the approval of her claims.
Also, given the lack of corresponding appropriation ordinance and certification of availability of
funds for such purpose, petitioner had the duty not to sign the vouchers. As chief executive of
the municipality, Llorente could not have approved the voucher for the payment of
complainant's salaries under Sec. 344, Local Government Code of 1991. 25 Also, Appropriation
Ordinance No. 02026 adding a supplemental budget for calendar year 1990 was approved on
April 10, 1989, or almost a year before complainant was transferred back to Sindangan.
Hence, she could not have been included therein. SB Resolution No. 202 and Appropriation
Ordinance No. 035,27 which fixed the municipal budget for calendar year 1991, was passed
only on May 21, 1990, or almost another year after the transfer took effect. The petitioner's
failure to approve the complainant's vouchers was therefore due to some legal obstacles, 28 and
not entirely without reason. Thus, evident bad faith cannot be completely imputed to him.
Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of sworn
duty through some motive or intent or ill will; it partakes of the nature of fraud. (Spiegel
v. Beacon Participations, 8 NE 2nd Series, 895, 1007). It contemplates a state of mind
affirmatively operating with furtive design or some motive of self interest or ill will for
ulterior purposes (Air France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith
connotes a manifest deliberate intent on the part of the accused to do wrong or cause
damage.29
In Jacinto, evident bad faith was not appreciated because the actions taken by the accused
were not entirely without rhyme or reason; he refused to release the complainant's salary
because the latter failed to submit her daily time record; he refused to approve her sick-leave
application because he found out that she did not suffer any illness; and he removed her name
from the plantilla because she was moonlighting during office hours. Such actions were
measures taken by a superior against an erring employee who studiously ignored, if not defied,
his authority.30

In Alejandro, evident bad faith was ruled out, because the accused gave his approval to the
questioned disbursement after relying on the certification of the bookkeeper on the availability
of funds for such disbursement.31
Third Issue: Interpretation of Causing
The Court does not completely agree with petitioner's assertion that the imputed act does not
fall under Sec. 3[e] which, according to him, requires a positive act a malfeasance or
misfeasance. Causing means "to be the cause or occasion of, the effect as an agent, to bring
into existence, to make or to induce, to compel." 32 Causing is, therefore, not limited to positive
acts only. Even passive acts or inaction may cause undue injury. What is essential is that
undue injury, which is quantifiable and demonstrable, results from the questioned official act or
inaction.
In this case, the prosecution accused petitioner of failing or refusing to pay complainant's
salaries on time, while Respondent Court convicted him of unduly delaying the payment of
complainant's claims. As already explained, both acts did not, however, legally result in "undue
injury" or in "giving any unwarranted benefits, advantage or preference in the discharge of his
official, [or] administrative . . . functions." Thus, these acts are not punishable under Sec. 3[e].
It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the
delay in his acting on them more properly falls under Sec. 3[f]:
(f) Neglecting or refusing, after due demand or request, without sufficient justification, to
act within a reasonable time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in the matter some pecuniary
or material benefit or advantage, or for purpose of favoring his own interest or giving
undue advantage in favor of or discriminating against any other interested party.
Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing
of undue injury. Thus, its elements are:
1) The offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient justification after
due demand or request has been made on him;
3) Reasonable time has elapsed from such demand or request without the public officer
having acted on the matter pending before him; and
4) Such failure to so act is "for the purpose of obtaining, directly or indirectly, from any
person interested in the matter some pecuniary or material benefit or advantage in favor
of an interested party, or discriminating against another.33
However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not
proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his
constitutional right to due process.
WHEREFORE, the petition is hereby GRANTED. Petitioner is ACQUITTED of violating Section
3[e] of R.A. 3019, as amended. No costs.

SO ORDERED.

G.R. No. 164435

September 29, 2009

VICTORIA S. JARILLO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
This resolves the Petition for Review on Certiorari under Rule 45 of the Rules of Court, praying that
the Decision1of the Court of Appeals (CA), dated July 21, 2003, and its Resolution 2 dated July 8,
2004, be reversed and set aside.
On May 31, 2000, petitioner was charged with Bigamy before the Regional Trial Court (RTC) of
Pasay City, Branch 117 under the following Information in Criminal Case No. 00-08-11:
INFORMATION
The undersigned Assistant City Prosecutor accuses VICTORIA S. JARILLO of the crime of BIGAMY,
committed as follows:
That on or about the 26th day of November 1979, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, Victoria S. Jarillo, being
previously united in lawful marriage with Rafael M. Alocillo, and without the said marriage having
been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second
marriage with Emmanuel Ebora Santos Uy which marriage was only discovered on January 12, 1999.
Contrary to law.
On July 14, 2000, petitioner pleaded not guilty during arraignment and, thereafter, trial proceeded.
The undisputed facts, as accurately summarized by the CA, are as follows.
On May 24, 1974, Victoria Jarillo and Rafael Alocillo were married in a civil wedding ceremony
solemnized by Hon. Monico C. Tanyag, then Municipal Mayor of Taguig, Rizal (Exhs. A, A-1, H, H-1,
H-2, O, O-1, pp. 20-21, TSN dated November 17, 2000).
On May 4, 1975, Victoria Jarillo and Rafael Alocillo again celebrated marriage in a church wedding
ceremony before Rev. Angel Resultay in San Carlos City, Pangasinan (pp. 25-26, TSN dated

November 17, 2000). Out of the marital union, appellant begot a daughter, Rachelle J. Alocillo on
October 29, 1975 (Exhs. F, R, R-1).
Appellant Victoria Jarillo thereafter contracted a subsequent marriage with Emmanuel Ebora Santos
Uy, at the City Court of Pasay City, Branch 1, before then Hon. Judge Nicanor Cruz on November 26,
1979 (Exhs. D, J, J-1, Q, Q-1, pp. 15-18, TSN dated November 22, 2000).
On April 16, 1995, appellant and Emmanuel Uy exchanged marital vows anew in a church wedding in
Manila (Exh. E).
In 1999, Emmanuel Uy filed against the appellant Civil Case No. 99-93582 for annulment of marriage
before the Regional Trial Court of Manila.
Thereafter, appellant Jarillo was charged with bigamy before the Regional Trial Court of Pasay City x
x x.
xxxx
Parenthetically, accused-appellant filed against Alocillo, on October 5, 2000, before the Regional Trial
Court of Makati, Civil Case No. 00-1217, for declaration of nullity of their marriage.
On July 9, 2001, the court a quo promulgated the assailed decision, the dispositive portion of which
states:
WHEREFORE, upon the foregoing premises, this court hereby finds accused Victoria Soriano Jarillo
GUILTY beyond reasonable doubt of the crime of BIGAMY.
Accordingly, said accused is hereby sentenced to suffer an indeterminate penalty of SIX (6) YEARS
of prision correccional, as minimum, to TEN (10) YEARS of prision mayor, as maximum.
This court makes no pronouncement on the civil aspect of this case, such as the nullity of accuseds
bigamous marriage to Uy and its effect on their children and their property. This aspect is being
determined by the Regional Trial Court of Manila in Civil Case No. 99-93582.
Costs against the accused.
The motion for reconsideration was likewise denied by the same court in that assailed Order dated 2
August 2001.3
For her defense, petitioner insisted that (1) her 1974 and 1975 marriages to Alocillo were null and
void because Alocillo was allegedly still married to a certain Loretta Tillman at the time of the
celebration of their marriage; (2) her marriages to both Alocillo and Uy were null and void for lack of a
valid marriage license; and (3) the action had prescribed, since Uy knew about her marriage to
Alocillo as far back as 1978.
On appeal to the CA, petitioners conviction was affirmed in toto. In its Decision dated July 21, 2003,
the CA held that petitioner committed bigamy when she contracted marriage with Emmanuel Santos

Uy because, at that time, her marriage to Rafael Alocillo had not yet been declared null and void by
the court. This being so, the presumption is, her previous marriage to Alocillo was still existing at the
time of her marriage to Uy. The CA also struck down, for lack of sufficient evidence, petitioners
contentions that her marriages were celebrated without a marriage license, and that Uy had notice of
her previous marriage as far back as 1978.
In the meantime, the RTC of Makati City, Branch 140, rendered a Decision dated March 28, 2003,
declaring petitioners 1974 and 1975 marriages to Alocillo null and void ab initio on the ground of
Alocillos psychological incapacity. Said decision became final and executory on July 9, 2003. In her
motion for reconsideration, petitioner invoked said declaration of nullity as a ground for the reversal of
her conviction. However, in its Resolution dated July 8, 2004, the CA, citing Tenebro v. Court of
Appeals,4 denied reconsideration and ruled that "[t]he subsequent declaration of nullity of her first
marriage on the ground of psychological incapacity, while it retroacts to the date of the celebration of
the marriage insofar as the vinculum between the spouses is concerned, the said marriage is not
without legal consequences, among which is incurring criminal liability for bigamy." 5
Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court where
petitioner alleges that:
V.1. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN PROCEEDING WITH THE
CASE DESPITE THE PENDENCY OF A CASE WHICH IS PREJUDICIAL TO THE OUTCOME OF
THIS CASE.
V.2. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN AFFIRMING THE
CONVICTION OF PETITIONER FOR THE CRIME OF BIGAMY DESPITE THE SUPERVENING
PROOF THAT THE FIRST TWO MARRIAGES OF PETITIONER TO ALOCILLO HAD BEEN
DECLARED BY FINAL JUDGMENT NULL AND VOID AB INITIO.
V.3. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT
THERE IS A PENDING ANNULMENT OF MARRIAGE AT THE REGIONAL TRIAL COURT BRANCH
38 BETWEEN EMMANUEL SANTOS AND VICTORIA S. JARILLO.
V.4. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT
THE INSTANT CASE OF BIGAMY HAD ALREADY PRESCRIBED.
V.5. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT CONSIDERING THAT
THE MARRIAGE OF VICTORIA JARILLO AND EMMANUEL SANTOS UY HAS NO VALID
MARRIAGE LICENSE.
V.6. THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT ACQUITTING THE
PETITIONER BUT IMPOSED AN ERRONEOUS PENALTY UNDER THE REVISED PENAL CODE
AND THE INDETERMINATE SENTENCE LAW.
The first, second, third and fifth issues, being closely related, shall be discussed jointly. It is true that
right after the presentation of the prosecution evidence, petitioner moved for suspension of the
proceedings on the ground of the pendency of the petition for declaration of nullity of petitioners

marriages to Alocillo, which, petitioner claimed involved a prejudicial question. In her appeal, she also
asserted that the petition for declaration of nullity of her marriage to Uy, initiated by the latter, was a
ground for suspension of the proceedings. The RTC denied her motion for suspension, while the CA
struck down her arguments. In Marbella-Bobis v. Bobis,6 the Court categorically stated that:
x x x as ruled in Landicho v. Relova, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in
such a case the criminal case may not be suspended on the ground of the pendency of a civil case
for declaration of nullity. x x x
xxxx
x x x The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be
subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a
married man at the time he contracted his second marriage with petitioner. Against this legal
backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered
into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is
not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. x x
x7
The foregoing ruling had been reiterated in Abunado v. People, 8 where it was held thus:
The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to
the declaration of nullity, the crime had already been consummated. Moreover, petitioners assertion
would only delay the prosecution of bigamy cases considering that an accused could simply file a
petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial
question in the criminal case. We cannot allow that.
The outcome of the civil case for annulment of petitioners marriage to [private complainant] had no
bearing upon the determination of petitioners innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting
at the time the second marriage is contracted.
Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled. 9
For the very same reasons elucidated in the above-quoted cases, petitioners conviction of the crime
of bigamy must be affirmed. The subsequent judicial declaration of nullity of petitioners two
marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment
petitioner contracted a second marriage without the previous one having been judicially declared null
and void, the crime of bigamy was already consummated because at the time of the celebration of the
second marriage, petitioners marriage to Alocillo, which had not yet been declared null and void by a
court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration
of the nullity of petitioners marriage to Uy make any difference. 10 As held in Tenebro, "[s]ince a

marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A
plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision
penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a
valid marriage."11
Petitioners defense of prescription is likewise doomed to fail.
Under Article 349 of the Revised Penal Code, bigamy is punishable by prision mayor, which is
classified under Article 25 of said Code as an afflictive penalty. Article 90 thereof provides that
"[c]rimes punishable by other afflictive penalties shall prescribe in fifteen years," while Article 91
states that "[t]he period of prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents x x x ."
Petitioner asserts that Uy had known of her previous marriage as far back as 1978; hence,
prescription began to run from that time. Note that the party who raises a fact as a matter of defense
has the burden of proving it. The defendant or accused is obliged to produce evidence in support of
its defense; otherwise, failing to establish the same, it remains self-serving. 12 Thus, for petitioners
defense of prescription to prosper, it was incumbent upon her to adduce evidence that as early as the
year 1978, Uy already obtained knowledge of her previous marriage.
A close examination of the records of the case reveals that petitioner utterly failed to present sufficient
evidence to support her allegation. Petitioners testimony that her own mother told Uy in 1978 that
she (petitioner) is already married to Alocillo does not inspire belief, as it is totally unsupported by any
corroborating evidence. The trial court correctly observed that:
x x x She did not call to the witness stand her mother the person who allegedly actually told Uy
about her previous marriage to Alocillo. It must be obvious that without the confirmatory testimony of
her mother, the attribution of the latter of any act which she allegedly did is hearsay.13
As ruled in Sermonia v. Court of Appeals,14 "the prescriptive period for the crime of bigamy should be
counted only from the day on which the said crime was discovered by the offended party, the
authorities or their [agents]," as opposed to being counted from the date of registration of the
bigamous marriage.15 Since petitioner failed to prove with certainty that the period of prescription
began to run as of 1978, her defense is, therefore, ineffectual.1avvphi1
Finally, petitioner avers that the RTC and the CA imposed an erroneous penalty under the Revised
Penal Code. Again, petitioner is mistaken.
The Indeterminate Sentence Law provides that the accused shall be sentenced to an indeterminate
penalty, the maximum term of which shall be that which, in view of the attending circumstances, could
be properly imposed under the Revised Penal Code, and the minimum of which shall be within the
range of the penalty next lower than that prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime. The Indeterminate
Sentence Law leaves it entirely within the sound discretion of the court to determine the minimum
penalty, as long as it is anywhere within the range of the penalty next lower without any reference to

the periods into which it might be subdivided. The modifying circumstances are considered only in the
imposition of the maximum term of the indeterminate sentence. 16
Applying the foregoing rule, it is clear that the penalty imposed on petitioner is proper. Under Article
349 of the Revised Penal Code, the imposable penalty for bigamy is prision mayor. The penalty next
lower is prision correccional, which ranges from 6 months and 1 day to 6 years. The minimum penalty
of six years imposed by the trial court is, therefore, correct as it is still within the duration of prision
correccional. There being no mitigating or aggravating circumstances proven in this case, the
prescribed penalty of prision mayor should be imposed in its medium period, which is from 8 years
and 1 day to 10 years. Again, the trial court correctly imposed a maximum penalty of 10 years.
However, for humanitarian purposes, and considering that petitioners marriage to Alocillo has after all
been declared by final judgment17 to be void ab initio on account of the latters psychological
incapacity, by reason of which, petitioner was subjected to manipulative abuse, the Court deems it
proper to reduce the penalty imposed by the lower courts. Thus, petitioner should be sentenced to
suffer an indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day
of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum.
IN VIEW OF THE FOREGOING, the petition is PARTLY GRANTED. The Decision of the Court of
Appeals dated July 21, 2003, and its Resolution dated July 8, 2004 are hereby MODIFIED as to the
penalty imposed, but AFFIRMED in all other respects. Petitioner is sentenced to suffer an
indeterminate penalty of imprisonment from Two (2) years, Four (4) months and One (1) day of
prision correccional, as minimum, to Eight (8) years and One (1) day of prision mayor, as maximum.
SO ORDERED.

G.R. No. 164856

January 20, 2009

JUANITO A. GARCIA and ALBERTO J. DUMAGO, Petitioners,

vs.
PHILIPPINE AIRLINES, INC., Respondent.
DECISION
CARPIO MORALES, J.:
Petitioners Juanito A. Garcia and Alberto J. Dumago assail the December 5, 2003 Decision and April
16, 2004 Resolution of the Court of Appeals 1 in CA-G.R. SP No. 69540 which granted the petition for
certiorari of respondent, Philippine Airlines, Inc. (PAL), and denied petitioners Motion for
Reconsideration, respectively. The dispositive portion of the assailed Decision reads:
WHEREFORE, premises considered and in view of the foregoing, the instant petition is hereby
GIVEN DUE COURSE. The assailed November 26, 2001 Resolution as well as the January 28, 2002
Resolution of public respondent National Labor Relations Commission [NLRC] is hereby ANNULLED
and SET ASIDE for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. Consequently, the Writ of Execution and the Notice of Garnishment issued by the Labor
Arbiter are hereby likewise ANNULLED and SET ASIDE.
SO ORDERED.2
The case stemmed from the administrative charge filed by PAL against its employees-herein
petitioners3 after they were allegedly caught in the act of sniffing shabu when a team of company
security personnel and law enforcers raided the PAL Technical Centers Toolroom Section on July 24,
1995.
After due notice, PAL dismissed petitioners on October 9, 1995 for transgressing the PAL Code of
Discipline,4prompting them to file a complaint for illegal dismissal and damages which was, by
Decision of January 11, 1999,5 resolved by the Labor Arbiter in their favor, thus ordering PAL to, inter
alia, immediately comply with the reinstatement aspect of the decision.
Prior to the promulgation of the Labor Arbiters decision, the Securities and Exchange Commission
(SEC) placed PAL (hereafter referred to as respondent), which was suffering from severe financial
losses, under an Interim Rehabilitation Receiver, who was subsequently replaced by a Permanent
Rehabilitation Receiver on June 7, 1999.

From the Labor Arbiters decision, respondent appealed to the NLRC which, by Resolution of January
31, 2000, reversed said decision and dismissed petitioners complaint for lack of merit.6
Petitioners Motion for Reconsideration was denied by Resolution of April 28, 2000 and Entry of
Judgment was issued on July 13, 2000.7
Subsequently or on October 5, 2000, the Labor Arbiter issued a Writ of Execution (Writ) respecting
thereinstatement aspect of his January 11, 1999 Decision, and on October 25, 2000, he issued a
Notice of Garnishment (Notice). Respondent thereupon moved to quash the Writ and to lift the Notice
while petitioners moved to release the garnished amount.
In a related move, respondent filed an Urgent Petition for Injunction with the NLRC which, by
Resolutions of November 26, 2001 and January 28, 2002, affirmed the validity of the Writ and the
Notice issued by the Labor Arbiter but suspended and referred the action to the Rehabilitation
Receiver for appropriate action.
Respondent elevated the matter to the appellate court which issued the herein challenged Decision
and Resolution nullifying the NLRC Resolutions on two grounds, essentially espousing that: (1) a
subsequent finding of a valid dismissal removes the basis for implementing the reinstatement aspect
of a labor arbiters decision (the first ground), and (2) the impossibility to comply with the
reinstatement order due to corporate rehabilitation provides a reasonable justification for the failure to
exercise the options under Article 223 of the Labor Code (the second ground).
By Decision of August 29, 2007, this Court PARTIALLY GRANTED the present petition and effectively
reinstated the NLRC Resolutions insofar as it suspended the proceedings, viz:
Since petitioners claim against PAL is a money claim for their wages during the pendency of PALs
appeal to the NLRC, the same should have been suspended pending the rehabilitation proceedings.
The Labor Arbiter, the NLRC, as well as the Court of Appeals should have abstained from resolving
petitioners case for illegal dismissal and should instead have directed them to lodge their claim
before PALs receiver.
However, to still require petitioners at this time to re-file their labor claim against PAL under peculiar
circumstances of the case that their dismissal was eventually held valid with only the matter of
reinstatement pending appeal being the issue this Court deems it legally expedient to suspend the
proceedings in this case.
WHEREFORE, the instant petition is PARTIALLY GRANTED in that the instant proceedings herein
are SUSPENDED until further notice from this Court. Accordingly, respondent Philippine Airlines, Inc.
is hereby DIRECTED to quarterly update the Court as to the status of its ongoing rehabilitation. No
costs.
SO ORDERED.8 (Italics in the original; underscoring supplied)
By Manifestation and Compliance of October 30, 2007, respondent informed the Court that the SEC,
by Order of September 28, 2007, granted its request to exit from rehabilitation proceedings. 9

In view of the termination of the rehabilitation proceedings, the Court now proceeds to resolve
the remaining issuefor consideration, which is whether petitioners may collect their wages during the
period between the Labor Arbiters order of reinstatement pending appeal and the NLRC decision
overturning that of the Labor Arbiter, now that respondent has exited from rehabilitation proceedings.
Amplification of the First Ground
The appellate court counted on as its first ground the view that a subsequent finding of a valid
dismissal removes the basis for implementing the reinstatement aspect of a labor arbiters decision.
On this score, the Courts attention is drawn to seemingly divergent decisions concerning
reinstatement pending appeal or, particularly, the option of payroll reinstatement. On the one hand is
the jurisprudential trend as expounded in a line of cases including Air Philippines Corp. v.
Zamora,10 while on the other is the recent case ofGenuino v. National Labor Relations
Commission.11 At the core of the seeming divergence is the application of paragraph 3 of Article 223
of the Labor Code which reads:
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar
as the reinstatement aspect is concerned, shall immediately be executory, pending appeal. The
employee shall either be admitted back to work under the same terms and conditions prevailing prior
to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The
posting of a bond by the employer shall not stay the execution for reinstatement provided herein.
(Emphasis and underscoring supplied)
The view as maintained in a number of cases is that:
x x x [E]ven if the order of reinstatement of the Labor Arbiter is reversed on appeal, it is
obligatory on the part of the employer to reinstate and pay the wages of the dismissed
employee during the period of appeal until reversal by the higher court. On the other hand, if the
employee has been reinstated during the appeal period and such reinstatement order is reversed with
finality, the employee is not required to reimburse whatever salary he received for he is entitled to
such, more so if he actually rendered services during the period.12 (Emphasis in the original; italics
and underscoring supplied)
In other words, a dismissed employee whose case was favorably decided by the Labor Arbiter is
entitled to receive wages pending appeal upon reinstatement, which is immediately executory. Unless
there is a restraining order, it is ministerial upon the Labor Arbiter to implement the order of
reinstatement and it is mandatory on the employer to comply therewith. 13
The opposite view is articulated in Genuino which states:
If the decision of the labor arbiter is later reversed on appeal upon the finding that the ground for
dismissal is valid, then the employer has the right to require the dismissed employee on payroll
reinstatement to refund the salaries s/he received while the case was pending appeal, or it can be
deducted from the accrued benefits that the dismissed employee was entitled to receive from his/her
employer under existing laws, collective bargaining agreement provisions, and company practices.

However, if the employee was reinstated to work during the pendency of the appeal, then the
employee is entitled to the compensation received for actual services rendered without need of
refund.
Considering that Genuino was not reinstated to work or placed on payroll reinstatement, and her
dismissal is based on a just cause, then she is not entitled to be paid the salaries stated in item no. 3
of the fallo of the September 3, 1994 NLRC Decision.14 (Emphasis, italics and underscoring supplied)
It has thus been advanced that there is no point in releasing the wages to petitioners since their
dismissal was found to be valid, and to do so would constitute unjust enrichment.
Prior to Genuino, there had been no known similar case containing a dispositive portion where the
employee was required to refund the salaries received on payroll reinstatement. In fact, in a catena of
cases,15 the Court did not order the refund of salaries garnished or received by payroll-reinstated
employees despite a subsequent reversal of the reinstatement order.
The dearth of authority supporting Genuino is not difficult to fathom for it would otherwise render
inutile the rationale of reinstatement pending appeal.
x x x [T]he law itself has laid down a compassionate policy which, once more, vivifies and enhances
the provisions of the 1987 Constitution on labor and the working man.
xxxx
These duties and responsibilities of the State are imposed not so much to express sympathy for the
workingman as to forcefully and meaningfully underscore labor as a primary social and economic
force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable
partner for the nation's progress and stability.
xxxx
x x x In short, with respect to decisions reinstating employees, the law itself has determined a
sufficiently overwhelming reason for its execution pending appeal.
xxxx
x x x Then, by and pursuant to the same power (police power), the State may authorize an immediate
implementation, pending appeal, of a decision reinstating a dismissed or separated employee since
that saving act is designed to stop, although temporarily since the appeal may be decided in favor of
the appellant, a continuing threat or danger to the survival or even the life of the dismissed or
separated employee and his family.16
The social justice principles of labor law outweigh or render inapplicable the civil law doctrine of
unjust enrichment espoused by Justice Presbitero Velasco, Jr. in his Separate Opinion. The
constitutional and statutory precepts portray the otherwise "unjust" situation as a condition affording
full protection to labor.

Even outside the theoretical trappings of the discussion and into the mundane realities of human
experience, the "refund doctrine" easily demonstrates how a favorable decision by the Labor Arbiter
could harm, more than help, a dismissed employee. The employee, to make both ends meet, would
necessarily have to use up the salaries received during the pendency of the appeal, only to end up
having to refund the sum in case of a final unfavorable decision. It is mirage of a stop-gap leading the
employee to a risky cliff of insolvency.
Advisably, the sum is better left unspent. It becomes more logical and practical for the employee to
refuse payroll reinstatement and simply find work elsewhere in the interim, if any is available. Notably,
the option of payroll reinstatement belongs to the employer, even if the employee is able and raring to
return to work. Prior toGenuino, it is unthinkable for one to refuse payroll reinstatement. In the face of
the grim possibilities, the rise of concerned employees declining payroll reinstatement is on the
horizon.
Further, the Genuino ruling not only disregards the social justice principles behind the rule, but also
institutes a scheme unduly favorable to management. Under such scheme, the salaries
dispensed pendente lite merely serve as a bond posted in installment by the employer. For in the
event of a reversal of the Labor Arbiters decision ordering reinstatement, the employer gets back the
same amount without having to spend ordinarily for bond premiums. This circumvents, if not directly
contradicts, the proscription that the "posting of a bond [even a cash bond] by the employer shall not
stay the execution for reinstatement." 17
In playing down the stray posture in Genuino requiring the dismissed employee on payroll
reinstatement to refund the salaries in case a final decision upholds the validity of the dismissal, the
Court realigns the proper course of the prevailing doctrine on reinstatement pending appeal vis--vis
the effect of a reversal on appeal.
Respondent insists that with the reversal of the Labor Arbiters Decision, there is no more basis to
enforce the reinstatement aspect of the said decision. In his Separate Opinion, Justice Presbitero
Velasco, Jr. supports this argument and finds the prevailing doctrine in Air Philippines and allied
cases inapplicable because, unlike the present case, the writ of execution therein was secured prior
to the reversal of the Labor Arbiters decision.
The proposition is tenuous. First, the matter is treated as a mere race against time. The discussion
stopped there without considering the cause of the delay. Second, it requires the issuance of a writ of
execution despite the immediately executory nature of the reinstatement aspect of the decision. In
Pioneer Texturing Corp. v. NLRC,18which was cited in Panuncillo v. CAP Philippines, Inc.,19 the Court
observed:
x x x The provision of Article 223 is clear that an award [by the Labor Arbiter] for reinstatement shall
be immediately executory even pending appeal and the posting of a bond by the employer shall not
stay the execution for reinstatement. The legislative intent is quite obvious, i.e., to make an award of
reinstatement immediately enforceable, even pending appeal. To require the application for and
issuance of a writ of execution as prerequisites for the execution of a reinstatement award would
certainly betray and run counter to the very object and intent of Article 223, i.e., the immediate
execution of a reinstatement order. The reason is simple. An application for a writ of execution and its

issuance could be delayed for numerous reasons. A mere continuance or postponement of a

scheduled hearing, for instance, or an inaction on the part of the Labor Arbiter or the NLRC could
easily delay the issuance of the writ thereby setting at naught the strict mandate and noble purpose
envisioned by Article 223. In other words, if the requirements of Article 224 [including the issuance of
a writ of execution] were to govern, as we so declared in Maranaw, then the executory nature of a
reinstatement order or award contemplated by Article 223 will be unduly circumscribed and rendered
ineffectual. In enacting the law, the legislature is presumed to have ordained a valid and sensible law,
one which operates no further than may be necessary to achieve its specific purpose. Statutes, as a
rule, are to be construed in the light of the purpose to be achieved and the evil sought to be
remedied. x x x In introducing a new rule on the reinstatement aspect of a labor decision under
Republic Act No. 6715, Congress should not be considered to be indulging in mere semantic
exercise. x x x20 (Italics in the original; emphasis and underscoring supplied)
The Court reaffirms the prevailing principle that even if the order of reinstatement of the Labor Arbiter
is reversed on appeal, it is obligatory on the part of the employer to reinstate and pay the wages of
the dismissed employee during the period of appeal until reversal by the higher court. 21 It settles the
view that the Labor Arbiter's order of reinstatement is immediately executory and the employer has to
either re-admit them to work under the same terms and conditions prevailing prior to their dismissal,
or to reinstate them in the payroll, and that failing to exercise the options in the alternative, employer
must pay the employees salaries.22
Amplification of the Second Ground
The remaining issue, nonetheless, is resolved in the negative on the strength of the second ground
relied upon by the appellate court in the assailed issuances. The Court sustains the appellate courts
finding that the peculiar predicament of a corporate rehabilitation rendered it impossible for
respondent to exercise its option under the circumstances.
The spirit of the rule on reinstatement pending appeal animates the proceedings once the Labor
Arbiter issues the decision containing an order of reinstatement. The immediacy of its execution
needs no further elaboration.Reinstatement pending appeal necessitates its immediate execution
during the pendency of the appeal, if the law is to serve its noble purpose. At the same time, any
attempt on the part of the employer to evade or delay its execution, as observed in Panuncillo and as
what actually transpired in Kimberly,23 Composite,24 Air Philippines,25 and Roquero,26 should not be
countenanced.
After the labor arbiters decision is reversed by a higher tribunal, the employee may be barred
from collecting the accrued wages, if it is shown that the delay in enforcing the reinstatement
pending appeal was without fault on the part of the employer.
The test is two-fold: (1) there must be actual delay or the fact that the order of reinstatement pending
appeal was not executed prior to its reversal; and (2) the delay must not be due to the employers
unjustified act or omission. If the delay is due to the employers unjustified refusal, the employer may
still be required to pay the salaries notwithstanding the reversal of the Labor Arbiters decision.

In Genuino, there was no showing that the employer refused to reinstate the employee, who was the
Treasury Sales Division Head, during the short span of four months or from the promulgation on May
2, 1994 of the Labor Arbiters Decision up to the promulgation on September 3, 1994 of the NLRC
Decision. Notably, the former NLRC Rules of Procedure did not lay down a mechanism to promptly
effectuate the self-executory order of reinstatement, making it difficult to establish that the employer
actually refused to comply.
In a situation like that in International Container Terminal Services, Inc. v. NLRC 27 where it was
alleged that the employer was willing to comply with the order and that the employee opted not to
pursue the execution of the order, the Court upheld the self-executory nature of the reinstatement
order and ruled that the salary automatically accrued from notice of the Labor Arbiter's order of
reinstatement until its ultimate reversal by the NLRC. It was later discovered that the employee
indeed moved for the issuance of a writ but was not acted upon by the Labor Arbiter. In that scenario
where the delay was caused by the Labor Arbiter, it was ruled that the inaction of the Labor Arbiter
who failed to act upon the employees motion for the issuance of a writ of execution may no longer
adversely affect the cause of the dismissed employee in view of the self-executory nature of the order
of reinstatement.28
The new NLRC Rules of Procedure, which took effect on January 7, 2006, now require the employer
to submit areport of compliance within 10 calendar days from receipt of the Labor Arbiters
decision,29 disobedience to which clearly denotes a refusal to reinstate. The employee need not file a
motion for the issuance of the writ of execution since the Labor Arbiter shall thereafter motu
proprio issue the writ. With the new rules in place, there is hardly any difficulty in determining
the employers intransigence in immediately complying with the order.
In the case at bar, petitioners exerted efforts 30 to execute the Labor Arbiters order of reinstatement
until they were able to secure a writ of execution, albeit issued on October 5, 2000 after the reversal
by the NLRC of the Labor Arbiters decision. Technically, there was still actual delay which brings to
the question of whether the delay was due to respondents unjustified act or omission.
It is apparent that there was inaction on the part of respondent to reinstate them, but whether such
omission was justified depends on the onset of the exigency of corporate rehabilitation.
It is settled that upon appointment by the SEC of a rehabilitation receiver, all actions for claims before
any court, tribunal or board against the corporation shall ipso jure be suspended.31 As stated early on,
during the pendency of petitioners complaint before the Labor Arbiter, the SEC placed respondent
under an Interim Rehabilitation Receiver. After the Labor Arbiter rendered his decision, the SEC
replaced the Interim Rehabilitation Receiver with a Permanent Rehabilitation Receiver.
Case law recognizes that unless there is a restraining order, the implementation of the order of
reinstatement is ministerial and mandatory.32 This injunction or suspension of claims by legislative
fiat33 partakes of the nature of a restraining order that constitutes a legal justification for respondents
non-compliance with the reinstatement order. Respondents failure to exercise the alternative options
of actual reinstatement and payroll reinstatement was thus justified. Such being the case,
respondents obligation to pay the salaries pending appeal, as the normal effect of the non-exercise of
the options, did not attach.

While reinstatement pending appeal aims to avert the continuing threat or danger to the survival or
even the life of the dismissed employee and his family, it does not contemplate the period when the
employer-corporation itself is similarly in a judicially monitored state of being resuscitated in order to
survive.
The parallelism between a judicial order of corporation rehabilitation as a justification for the nonexercise of its options, on the one hand, and a claim of actual and imminent substantial losses as
ground for retrenchment, on the other hand, stops at the red line on the financial statements. Beyond
the analogous condition of financial gloom, as discussed by Justice Leonardo Quisumbing in his
Separate Opinion, are more salient distinctions. Unlike the ground of substantial losses contemplated
in a retrenchment case, the state of corporate rehabilitation was judicially pre-determined by a
competent court and not formulated for the first time in this case by respondent.
More importantly, there are legal effects arising from a judicial order placing a corporation under
rehabilitation. Respondent was, during the period material to the case, effectively deprived of the
alternative choices under Article 223 of the Labor Code, not only by virtue of the statutory injunction
but also in view of the interim relinquishment of management control to give way to the full exercise of
the powers of the rehabilitation receiver. Had there been no need to rehabilitate, respondent may
have opted for actual physical reinstatement pending appeal to optimize the utilization of resources.
Then again, though the management may think this wise, the rehabilitation receiver may decide
otherwise, not to mention the subsistence of the injunction on claims.
In sum, the obligation to pay the employees salaries upon the employers failure to exercise the
alternative options under Article 223 of the Labor Code is not a hard and fast rule, considering the
inherent constraints of corporate rehabilitation.
WHEREFORE, the petition is PARTIALLY DENIED. Insofar as the Court of Appeals Decision of
December 5, 2003 and Resolution of April 16, 2004 annulling the NLRC Resolutions affirming the
validity of the Writ of Execution and the Notice of Garnishment are concerned, the Court finds no
reversible error.
SO ORDERED.

G.R. No. L-69866 April 15, 1988

ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA
FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ,
ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH
OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO,
ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO
B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO
AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO,
1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT,
National Capital Judicial Region, Branch XCV (95), Quezon City, respondents.

YAP, J.:
This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the
question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for
damages for illegal searches conducted by military personnel and other violations of rights and
liberties guaranteed under the Constitution. If such action for damages may be maintained, who can
be held liable for such violations: only the military personnel directly involved and/or their superiors as
well.
This case stems from alleged illegal searches and seizures and other violations of the rights and
liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as
Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against
known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to
sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order,
elements of the TFM raided several places, employing in most cases defectively issued judicial
search warrants; that during these raids, certain members of the raiding party confiscated a number
of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants
issued by the courts; that for some period after their arrest, they were denied visits of relatives and
lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military
men who interrogated them employed threats, tortures and other forms of violence on them in order
to obtain incriminatory information or confessions and in order to punish them; that all violations of
plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract
information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said
plans being previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the
amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount
of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less
than P200,000.00.

A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito
Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus
is suspended; (2) assuming that the courts can entertain the present action, defendants are immune
from liability for acts done in the performance of their official duties; and (3) the complaint states no
cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs
Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando
Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor
Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio
Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a
Consolidated Reply was filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge
Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock,
stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the
circumstances of their detention in the guise of a damage suit because, as to them, the privilege of
the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present
action, defendants are immune from liability for acts done in the performance of their official duties;
and (3) that the complaint states no cause of action against defendants, since there is no allegation
that the defendants named in the complaint confiscated plaintiffs' purely personal properties in
violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and
Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had
the duty to exercise direct supervision and control of their subordinates or that they had vicarious
liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful
study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be
granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental motion for
reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983,
respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of
plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B.
Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and
Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further
proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to
Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid
pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion
that the undersigned has no authority or jurisdiction to resolve said pending motion." This order
prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the
Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo,
Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment
on said amplificatory motion for reconsideration.

In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the
motion to set aside order of November 8, 1983, issued an order, as follows:
It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca,
Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno,
Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino
and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran,
Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin,
represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the
Order of November 8, 1983, dismissing the complaint, nor interposed an appeal
therefrom within the reglementary period, as prayed for by the defendants, said Order is
now final against said plaintiffs.
Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May
28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo,
Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin
failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within
the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983
and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only
some of the lawyers.
In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider
its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8,
1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the
defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the
respondent court resolved:
(1) That the motion to set aside the order of finality, dated May 11, 1984, of the
Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la
Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth Protacio-Marcelino,
Alfredo Mansos and Rolando Salutin is deed for lack of merit;
(2) For lack of cause of action as against the following defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson

7. Capt. Danilo Pizaro

8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of dismissal of the present action
or complaint, dated November 8, 1983, is also denied but in so far as it affects and
refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the Resolution of dismissal dated November 3,
1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and
modified.
Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set
aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its
resolution dated September 21, 1984. Respondents were required to comment on the petition, which
it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 of the Civil Code which provides:
ART. 32. Any public officer or employee, or any private individual who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
(7) of law;

(8) The right to a just compensation when private property is taken for public use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house, papers, and effects against
unreasonable searches and seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or societies for purposes not
contrary to law;
(14) The right to take part in a peaceable assembly to petition the Government for
redress of grievances;
(15) The right to be free from involuntary servitude in any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the
attendance of witness in behalf;
(18) Freedom from being compelled to be a witness against ones self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to
make such confession, except when the person confessing becomes a State witness;
(19) Freedom from excessive fines or cruel and unusual punishment, unless the same
is imposed or inflicted in accordance with a statute which has not been judicially
declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the against grieved party has a right to
commence an entirely separate and distinct civil action for damages, and for other relief.
Such civil action shall proceed independently of any criminal prosecution (if the latter be
instituted), and may be proved by a preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or
omission constitutes a violation of the Penal Code or other penal statute.

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek
to violate those sacred rights with impunity. In times of great upheaval or of social and political stress,
when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee
to the law of force rather than the force of law, it is necessary to remind ourselves that certain
basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious
demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment
to democratic principles and to the rule of law compels us to reject the view which reduces law to
nothing but the expression of the will of the predominant power in the community. "Democracy cannot
be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by
him for whom it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On
going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment
which is not derived from reason, but which reason nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as
public officers they are covered by the mantle of state immunity from suit for acts done in the
performance of official duties or function In support of said contention, respondents maintain that
Respondents are members of the Armed Forces of the Philippines. Their primary duty is
to safeguard public safety and order. The Constitution no less provides that the
President may call them "to prevent or supress lawless violence, invasion, insurrection
or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9).
On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but
providing for the continued suspension of the privilege of the writ of habeas corpus in
view of the remaining dangers to the security of the nation. The proclamation also
provided "that the call to the Armed Forces of the Philippines to prevent or suppress
lawless violence, insuitection rebellion and subversion shall continue to be in force and
effect."
Petitioners allege in their complaint that their causes of action proceed from respondent
General Ver's order to Task Force Makabansa to launch pre-emptive strikes against
communist terrorist underground houses in Metro Manila. Petitioners claim that this
order and its subsequent implementation by elements of the task force resulted in the
violation of their constitutional rights against unlawful searches, seizures and arrest,
rights to counsel and to silence, and the right to property and that, therefore,
respondents Ver and the named members of the task force should be held liable for
damages.
But, by launching a pre-emptive strike against communist terrorists, respondent
members of the armed forces merely performed their official and constitutional duties.
To allow petitioners to recover from respondents by way of damages for acts performed
in the exercise of such duties run contrary to the policy considerations to shield
respondents as public officers from undue interference with their duties and from
potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v.
Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of

governmental and public functions from being harassed unduly or constantly interrupted
by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising from the performance of their duties
is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102
Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo,
360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v.
Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198;
Sami v. US, 617 F. 2d 755).
Respondents-defendants who merely obeyed the lawful orders of the President and his
call for the suppression of the rebellion involving petitioners enjoy such immunity from
Suit. 3
We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The
cases invoked by respondents actually involved acts done by officers in the performance of official
duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4
No one can be held legally responsible in damages or otherwise for doing in a legal
manner what he had authority, under the law, to do. Therefore, if the Governor-General
had authority, under the law to deport or expel the defendants, and circumstances
justifying the deportation and the method of carrying it out are left to him, then he cannot
be held liable in damages for the exercise of this power. Moreover, if the courts are
without authority to interfere in any manner, for the purpose of controlling or interferring
with the exercise of the political powers vested in the chief executive authority of the
Government, then it must follow that the courts cannot intervene for the purpose of
declaring that he is liable in damages for the exeercise of this authority.
It may be that the respondents, as members of the Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection,
rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the
lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive
strikes against alleged communist terrorist underground houses. But this cannot be construed as a
blanket license or a roving commission untramelled by any constitutional restraint, to disregard or
transgress upon the rights and liberties of the individual citizen enshrined in and protected by the
Constitution. The Constitution remains the supreme law of the land to which all officials, high or low,
civilian or military, owe obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or employee or any private individual
liable in damages for violating the Constitutional rights and liberties of another, as enumerated
therein, does not exempt the respondents from responsibility. Only judges are excluded from liability
under the said article, provided their acts or omissions do not constitute a violation of the Penal Code
or other penal statute.

This is not to say that military authorities are restrained from pursuing their assigned task or carrying
out their mission with vigor. We have no quarrel with their duty to protect the Republic from its
enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our
democratic institutions and imperil their very existence. What we are merely trying to say is that in
carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise,
the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for
the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in
the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned.
We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the
suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners
cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at
the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief
they ask by the present action is indemnification for alleged damages they suffered, their causes of
action are inextricably based on the same claim of violations of their constitutional rights that they
invoked in the habeas corpus case as grounds for release from detention. Were the petitioners
allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will
take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by
the President, petitioners will be able to do by the mere expedient of altering the title of their action."
We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal
arrest and detention and other violations of their constitutional rights. The suspension does not render
valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to
seek release from detention through the writ of habeas corpus as a speedy means of obtaining his
liberty.
Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly
recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to
its text:
However, when the action (for injury to the rights of the plaintiff or for a quasi-delict)
arises from or out of any act, activity or conduct of any public officer involving the
exercise of powers or authority arising from Martial Law including the arrest, detention
and/or trial of the plaintiff, the same must be brought within one (1) year.
Petitioners have a point in contending that even assuming that the suspension of the privilege of the
writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and
detention, it does not and cannot suspend their rights and causes of action for injuries suffered
because of respondents' confiscation of their private belongings, the violation of their right to remain
silent and to counsel and their right to protection against unreasonable searches and seizures and
against torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and

2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore
has become moot and academic.
This brings us to the crucial issue raised in this petition. May a superior officer under the notion of
respondent superior be answerable for damages, jointly and severally with his subordinates, to the
person whose constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondent superior is applicable to the case. We agree.
The doctrine of respondent superior has been generally limited in its application to principal and agent
or to master and servant (i.e. employer and employee) relationship. No such relationship exists
between superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32.
The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the
violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one
directly responsible) who must answer for damages under Article 32; the person indirectly responsible
has also to answer for the damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of public officials under the Constitution 5 acquires
added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance
or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to
answer for the transgressions committed by the latter against the constitutionally protected rights and
liberties of the citizen. Part of the factors that propelled people power in February 1986 was the
widely held perception that the government was callous or indifferent to, if not actually responsible for,
the rampant violations of human rights. While it would certainly be go naive to expect that violators of
human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless
be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly,
as well as indirectly, responsible for the transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col.
Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo
Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their
subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as
defendants on the ground that they alone 'have been specifically mentioned and Identified to have
allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical
violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not
supported by the record, nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged
physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act
of violating or in any manner impeding or impairing any of the constitutional rights and liberties
enumerated therein, among others
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due process of law;

3. The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to
make a confession, except when the person confessing becomes a state witness.
The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs'
constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired
by defendants. The complaint speaks of, among others, searches made without search warrants or
based on irregularly issued or substantially defective warrants; seizures and confiscation, without
proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which
were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs
without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several
undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical
and psychological torture and other inhuman, degrading and brutal treatment for the purpose of
extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated
upon the plaintiffs violative of their constitutional rights.
Secondly, neither can it be said that only those shown to have participated "directly" should be held
liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as
well as indirectly, responsible for its violation.
The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is
well established in our law and jurisprudence that a motion to dismiss on the ground that the
complaint states no cause of action must be based on what appears on the face of the complaint. 6 To
determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no
others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the
truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the
complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido
Balaba. The complaint contained allegations against all the defendants which, if admitted
hypothetically, would be sufficient to establish a cause or causes of action against all of them under
Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to
plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said
plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting
the respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by
'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for

Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman;
Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel
for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla,
counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that the motion was filed on behalf of all the
plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he
filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the
motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene
Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad,
Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on
behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to
appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse
party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part
of respondent judge to take it upon himself to rule that the motion to set aside the order of November
8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it
was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent
judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had
already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for
reconsideration. Such action tainted with legal infirmity cannot be sanctioned.
Accordingly, we grant the petition and annul and set aside the resolution of the respondent court,
dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984.
Let the case be remanded to the respondent court for further proceedings. With costs against private
respondents.
SO ORDERED.

G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented
by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:
Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and
Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the
Resolution dated December 20. 1991 3 denying reconsideration, convicting them of malversation
under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total amount of P55 Million of the Manila International
Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance
Services Manager, respectively, of MIAA, and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal
as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine
of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall
also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal
as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a
fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He
shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public
office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one

(1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal
as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS
(P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally
the Manila International Airport Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from
public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of
P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal
accused he being charged in all three (3) cases. The amended informations in criminal case nos.
11758, 11759 and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the
MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance
of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay. Philippines and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the
General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the
MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and
confabulating with each other, did then and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take and misappropriate the amount of TWENTY
FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance

of a manager.s check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent thereto,
in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the
General Manager and Acting Manager, Financial Services Department, respectively, of
the Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals
against the cash accounts of MIAA pursuant to its board resolutions, conspiring,
confederating and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the
amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the
issuance of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension
Office at the Manila International Airport in Pasay City, purportedly as partial payment to
the Philippine National Construction Corporation (PNCC), the mechanics of which said
accused Tabuena would personally take care of, when both accused well knew that
there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of
the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to
their personal use and benefit, to the damage and prejudice of the government in the
aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and
in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which
Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe RoaGimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:
Office of the President
of the Philippines
Malacanang

Januar
y 8,
1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS
in cash as partial payment of MIAA's account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly
approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS. 4
The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin
referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
For: The President
From: Minister Roberto V. Ongpin
Date: 7 January 1985
Subject: Approval of Supplemental Contracts and Request
for Partial Deferment of Repayment of PNCC's Advances for
MIA Development Project
May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project
(MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was submitted to the Office of the
President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation
(PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project
aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In
accordance with contract provisions, outstanding advances totalling P93.9 million are to
be deducted from said billings which will leave a net amount due to PNCC of only P4.5
million.
At the same time, PNCC has potential escalation claims amounting to P99 million in the
following stages of approval/evaluation:
Approved by Price Escalation Committee
(PEC) but pended for lack of funds P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC
due to additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment of the
repayment of PNCC's advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been
officially recognized by MIADP consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC of
P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

(Sgd.) ROBERTO
V. ONGPIN
Minister 5
In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of
Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date
signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository
branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check
was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor
branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were
then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the
same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez
did not issue any receipt for the money received
Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's
co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied
Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million.
After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of
Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at
Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all
the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:
Malacanang
Manila
Januar
y 30,
1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION
PESOS (P55,000,000.00) as of the following dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00
(Sgd.)
Fe
RoaGimen
ez
The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of
the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55
Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and

Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC
by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at
the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and
Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to the Office of the
President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he
(Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the
same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the
release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that
we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:
. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriated the
amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this connection,
the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying
Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or of
the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so, Tabuena,
by his own narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be
committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where
the amended informations charged them with intentional malversation. 7

3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v.
Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accusedpetitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:
. . . even on the putative assumption that the evidence against petitioner yielded a case
of malversation by negligence but the information was for intentional malversation,
under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or
by negligence. The dolo or the culpa present in the offense is only a modality in the
perpetration of the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or
intentional falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in
Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the greater
includes the lesser offense. This is the situation that obtains in the present case.
Appellant was charged with willful falsification but from the evidence submitted by the
parties, the Court of Appeals found that in effecting the falsification which made possible
the cashing of the checks in question, appellant did not act with criminal intent but
merely failed to take proper and adequate means to assure himself of the identity of the
real claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the
allegation and proof, and is similar to some of the cases decided by this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established to
constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence
submitted by appellant himself and the result has proven beneficial to him. Certainly,
having alleged that the falsification has been willful, it would be incongruous to allege at
the same time that it was committed with imprudence for a charge of criminal intent is
incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale
and arguments also apply to the felony of malversation, that is, that an accused charged
with willful malversation, in an information containing allegations similar to those
involved in the present case, can be validly convicted of the same offense of

malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2)
vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court
stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea a crime is not committed if the mind of the person performing
the act complained of is innocent.
The rule was reiterated in "People v. Pacana,"
public documents and estafa:

12

although this case involved falsification of

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non
facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction
honestly entered into, and there can be no embezzlement if the mind of the person doing the
act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce
evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to
our mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of the P55
Million solely by reason of such memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with
the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena's superior the former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other
words, Marcos had a say in matters involving inter-government agency affairs and transactions, such
as for instance, directing payment of liability of one entity to another and the manner in which it
should be carried out. And as a recipient of such kind of a directive coming from the highest official of
the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any
question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful
purpose." 16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too,
is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose
partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the
unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that
the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million.
The Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCC's
escalation billings which would result in making payable to PNCC the amount of P34.5
million out of existing MIAA Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its billings, and in consideration of ifs
pending escalation billings, may we request for His Excellency's approval
for a deferment of repayment of PNCC's advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims of
PNCC, of which P32.6 million has been officially recognized by MIADP
consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out
of existing MIA Project funds. This amount represents the excess of the
gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC
to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still
in the stages of evaluation and approval, with only P32.6 million having been officially
recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos' Memo was based) they would only be for a sum of up to P34.5
million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55
million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2",
"2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC
while Exhibit "2" authorized only P34.5 million. The order to withdraw the
amount of P55 million exceeded the approved payment of P34.5 million by
P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore
serve as a basis for the President's order to withdraw P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him
criminally liable. What is more significant to consider is that the MARCOS Memorandum is
patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena

acted under the honest belief that the P55 million was a due and demandable debt and that it
was just a portion of a bigger liability to PNCC. This belief is supported by defense witness
Francis Monera who, on direct examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2,
marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to
MIA as contract-owner of the project that the Philippine National
Construction Corporation constructed. These are billings for escalation
mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contractowner that are supposed to take care of price increases, sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you
that these are due and demandable?
A Yes, sir. 21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact committed
in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as
follows:
Accused was charged with falsification of commercial document. A mere employee of
R.J. Campos, he inserted in the commercial document alleged to have been falsified the
word "sold" by order of his principal. Had he known or suspected that his principal was
committing an improper act of falsification, he would be liable either as a co-principal or
as an accomplice. However, there being no malice on his part, he was exempted from
criminal liability as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary",
did not comply with certain auditing rules and regulations such as those pointed out by the
Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by
COA)
b) payment of all claims against the government had to be supported with complete documentation
(Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan
observed that:
There were no vouchers to authorize the disbursements in question. There were no bills
to support the disbursement. There were no certifications as to the availability of funds
for an unquestionably staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the
luxury of time to observe all auditing procedures of disbursement considering the fact that the
MARCOS Memorandum enjoined his "immediate compliance" with the directive that he
forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely
cannot escape responsibility for such omission. But since he was acting in good faith, his
liability should only be administrative or civil in nature, and not criminal. This follows the
decision in "Villacorta v. People" 26 where the Court, in acquitting therein accused municipal
treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in
his cash accountability by reason of his payment in good faith to certain government personnel
of their legitimate wages leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made
wrong payments, they were in Good faith mainly to government personnel, some of
them working at the provincial auditor's and the provincial treasurer's offices And if those
payments ran counter to auditing rules and regulations, they did not amount to a
criminal offense and he should only be held administratively or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not
amount to criminal appropriation, although they were made with insufficient vouchers or
improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the
revised Manual on Certificate of Settlement and Balances apparently made to underscore
Tabuena's personal accountability, as agency head, for MIAA funds would all the more
support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295
expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a
superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a
subordinate officer or employee who commits "willful or negligent acts . . . which are contrary
to law, morals, public policy and good customs even if he acted under order or instructions of
his superiors."
Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC,
proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent

"appropriation to one's own use' of another's property which does not necessarily mean
to one's personal advantage but every attempt by one person to dispose of the goods of
another without right as if they were his own is conversion to his own use." (Terry v.
Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)
At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property
to enjoy and control it. The gist of conversion is the usurpation of the owner 's right of
property, and not the actual damages inflicted. Honesty of purpose is not a defense.
(Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of
another's property as if it were one's own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to one's
own use includes not only conversion to one's personal advantage but every attempt to
dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them and
converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to
pay immediately the Philippine National Construction Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the
money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had
reasonable ground to believe that the President was entitled to receive the P55 Million since
he was certainly aware that Marcos, as Chief Executive, exercised supervision and control
over government agencies. And the good faith of Tabuena in having delivered the money to the
President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum,
was not at all affected even if it later turned out that PNCC never received the money. Thus, it
has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation

only if the public officer who has custody of public funds should appropriate the same,
or shall take or misappropriate or shall consent, or through abandonment or negligence
shall permit any other person to take such public funds. Where the payment of public
funds has been made in good faith, and there is reasonable ground to believe that the
public officer to whom the fund had been paid was entitled thereto, he is deemed to
have acted in good faith, there is no criminal intent, and the payment, if it turns out that
it is unauthorized, renders him only civilly but not criminally liable. 29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to
siphon-out public money for the personal benefit of those then in power, still, no criminal liability can
be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the
execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious
scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the
P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the
crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding
of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was
prosecuted for and found guilty by the lower court of malversation after being unable to turn over
certain amounts to the then justice of the peace. It appeared, however, that said amounts were
actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after
finding that the sums were converted by his secretary Urbina without the knowledge and participation
of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the
theft committed by the secretary was shown on the part of the appellant in this case, nor
does it appear that he in any way participated in the fruits of the crime. If the secretary
stole the money in question without the knowledge or consent of the appellant and
without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof. 32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be
converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but
the checks were subsequently dishonored. Ang was acquitted by this Court after giving
credence to his assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also
adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar as
a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must
be converted into evidence before conviction beyond reasonable doubt may be
imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally apply
to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in
good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5
Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It carries
with it the presumption that it was regularly issued. And on its face, the memorandum is patently
lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor
for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides,
the case could not be detached from the realities then prevailing As aptly observed by Mr Justice
Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and
that the Judiciary was independent and fearless. We know it was not: even the
Supreme Court at that time was not free. This is an undeniable fact that we can not just
blink away. Insisting on the contrary would only make our sincerity suspect and even
provoke scorn for what can only be described as our incredible credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the accused's
basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr.
Justice Cruz's words, "is more important than securing a conviction based on a violation of the rights
of the accused." 35 While going over the records, we were struck by the way the Sandiganbayan
actively took part in the questioning of a defense witness and of the accused themselves. Tabuena
and Peralta may not have raised this as an error, there is nevertheless no impediment for us to
consider such matter as additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the appellate court to correct such
errors as may be found in the judgment appealed from whether they are made the subject of
assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony
of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty.
Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court interjected a total of twenty-seven
(27) questions (more than four times Prosecutor Viernes' questions and even more than the
combined total of direct and cross-examination questions asked by the counsels) After the defense
opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions. 37
The trend intensified during Tabuena's turn on the witness stand. Questions from the court after
Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor
Viernes' questions on cross-examination (14), and more than double the total of direct examination
and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty.
Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the Justices,
after his cross-examination, propounded a total of forty-one (41) questions. 39
But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified
in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length
from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court
are marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables
from MIAA totalling P102,475,392.35, and although such receivables were largely billings for

escalation, they were nonetheless all due and demandable. What follows are the cross-examination
of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits "7" and "7- a", the items here
represent mostly escalation billings. Were those escalation billings
properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were transmitted,
but I have a letter by our President, Mr. Olaguer, dated July 6, 1988,
following up for payment of the balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference
between the MIA and the PNCC for the determination as to the correct
amount?
A I agree, your Honor. As far as we are concerned, our billings are what
we deemed are valid receivables And, in fact, we have been following up
for payment.
*Q This determination of the escalation costs was it accepted as the
correct figure by MIA ?
A I don't have any document as to the acceptance by MIA your Honor, but
our company was able to get a document or a letter by Minister Ongpin to
President Marcos, dated January 7, 1985, with a marginal note or
approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and
request for partial deferment of payment for MIA Development Project,
your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your
Honor.
*Q Does that indicate the computation for escalations were already billed
or you do not have any proof of that
A Our subsidiary ledger was based on billings to MIA and this letter of
Minister Ongpin appears to have confirmed our billings to MIA, your
Honor.

*AJ AMORES
*Q Were there partial payments made by MIA an these escalation billings?
A Based on records available as of today, the P102 million was reduced to
about P56.7 million, if my recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr.
Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the
payments were made before the entry of our President, your Honor.
Actually, the payment was in the form of: assignments to State Investment
of about P23 million; and then there was P17.8 million application against
advances made or formerly given; and there were payments to PNCC of
about P2.6 million and there was a payment for application on withholding
and contractual stock of about P1 million; that summed up to P44.4 million
all in all. And you deduct that from the P102 million, the remaining balance
would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102
million, only P2 million had been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts,
or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the
balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the
basic account has been reduced. These reductions, whether by
adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?
WITNESS
A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were
made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation
billings. Do we get it from you that there was an admission of these
escalation costs as computed by you by MIA, since there was already
partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or
check, if there were payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there
any liquidations made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger
card indicates that there were collections on page 2 of the Exhibit earlier
presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA
with respect to the escalation billings. Was the payment in cash or just
credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official
receipts and I suppose these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by
MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to
December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in
connection with or in case of cash payment, was the payment in cash or
check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the
former President Marcos, did you say that letter concurs with the
escalation billings reflected in Exhibits "7" and "7-a"?
WITNESS

A The Company or the management is of the opinion that this letter, a

copy of which we were able to get, is a confirmation of the acceptance of
our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the
entries of escalation billings as appearing in Exhibit "7" are dated June 30,
1985, would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of December 31,
1985, it stood at P102 million after payments were made as shown on the
credit side of the ledger. I suppose hat the earlier amount, before the
payment was made, was bigger and therefore I would venture to say that
the letter of January 7, 1985 contains an amount that is part of the original
contract account. What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit "7" and "7-a", there were
credits made in favor of MIA in July and November until December 1985.
These were properly credited to the account of MIA?
WITNESS
A Yes, sir.
Q In 1986. from your records as appearing in Exhibit "7-a", there were no
payments made to PNCC by MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no
payment of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an
assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of
adjustment of account, or by assignment, or by offsets, when did these
payments begin?
A Per ledger card, there were payments in 1985, prior to December 31,
1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement,
your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements P23 million is just
part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State
Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet
reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a
collection letter by our President dated July 6, 1988, your Honor. The
amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . . 41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash
on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money
for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr.
Tabuena, were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from
Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued
by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor What happened is
that, I did not notice the date placed by Mrs. Gimenez.
Q Are you telling us that this Exhibit "3" was incorrectly dated
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit "3" was prepared?
A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who
typed this receipt?
A No, sir. What happened is that, she went to her room and when she
came out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January
30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she
handed this receipt to you already typed and signed?

A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters
from her also and when she requests for something from me. Her writing
is familiar to me.
So, when the Presiding Justice asked you as to how you knew that this
was the signature of Mrs. Gimenez and you answered that you saw Mrs.
Gimenez signed it, you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her room
and when she came out, she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it
carefully. Because when I asked you, you said you saw her signed it. Be
careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when she
gave you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million
was made on January 30. Do we understand from you that this date
January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This
should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.

PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the
accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the President's memorandum marked
Exhibit "1"? Or more precisely, who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for what purpose the money was being
asked?
A The money was in payment for the debt of the MIA Authority to PNCC,
your Honor.
*Q If it was for the payment of such obligation why was there no voucher
prepared to cover such payment? In other words, why was the delivery of
the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your

Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular
disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the
President for obligations of the MIAA in payment of its obligation to
another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
Did you file any written protest with the manner with which such payment
was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your
Honor.
*Q Before receiving this memorandum Exhibit "1", did the former
President Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay
what I owe the PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?

WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's obligation
with PNCC, did you not on your own accord already prepare the
necessary papers and documents for the payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of
that obligation is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the
President?
A Yes, your Honor.
*Q And was that the last time also that you received such a
memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the regular
procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor.
MIAA owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled
by virtue of that payment?
A Based on the order to me by the former President Marcos ordering me
to pay that amount to his office and then the mechanics will come after,
your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly, to the PNCC considering that
you are the Manager of MIA at that time and the PNCC is a separate
corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacanang to pay PNCC through
the Office of the President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC incurred. Was it through the
President or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the
Board or President of the PNCC? In other words, who signed the contract
between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who signed
for this was the former Director of BAT which is General Singzon. Then
when the MIA Authority was formed, all the obligations of BAT were

transferred to MIAA. So the accountabilities of BAT were transferred to

MIAA and we are the ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation was
with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that
this was not the regular course or Malacaang was not the creditor?
A I saw nothing wrong with that because that is coming, from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed
to deliver money in this amount through a mere receipt from the private
secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that
you have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did you ever work for the
government?
A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its
Manager was your first employment ,with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent
concurrent positions in the government also?
A I was also the Chairman of the Games and Amusement Board, your
Honor.
*Q But you were not the executive or operating officer of the Games and
Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and
later the MIAA for approximately 18 years, you also ran the Games and
Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our
Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: "Chairman or Manager, this cannot
be". And we learn later on that COA has reasons for its procedure and we
learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we
consider it foolish, but we know there is reason in this apparent madness
of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper
documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash,
not to the creditor of the particular credit, and to be delivered in armored
cars to be acknowledged only by a receipt of a personal secretary. After
almost 18 years in the government service and having had that much time
in dealing with COA people, did it not occur to you to call a COA
representative and say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked
the COA for some guidance on this matter so that you will do it properly?

WITNESS
A What I was going to do is, after those things I was going to tell that
delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you
and Mr. Peralta signed requests for issuance of Manager's checks and
you were accommodated by the PNB Office at Nichols without any internal
documentation to justify your request for Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the
elections but even then, the Daily Express, which was considered to be a
newspaper friendly to the Marcoses at that time, would occasionally come
with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always
come out with the real or imagined scandal in the government and place it
in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some apprehension that
some disloyal employees might leak you out and banner headline it in
some mosquito publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We
are in the government and we in the government fear the COA and we
also fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly
documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3)
different trips from Nichols to Aguado usually late in the day almost in

movie style fashion. I mean, the money being loaded in the trunk of your
official car and then you had a back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard with
P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in
the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with
P5 million inside the trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . .

42

(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was
aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He
affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but
denied having misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary for you to
co-sign with Mr. Tabuena the request for issuance of Manager's check in
the amount of P5 million?
A At that time I was the Acting Financial Services Manager of MIAA, sir,
and all withdrawals of funds should have my signature because I was one
of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with

Mr. Tabuena in similar requests for the issuance of Manager's checks by
the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the request?
A Yes, sir, and I think the order is part of the exhibits and based on that
order, I co-signed in the request for the issuance of Manager's check in
favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as
exhibit "N".
PROS VIERNES
It was marked as Exhibit "M", your Honor.
Q How did you know there was an existing liability of MIAA in favor of
PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the
financial statement of MIAA as of December 31, 1985 and it came to my
attention that there was an existing liability of around P27,999,000.00,
your Honor.
Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end
of the year within three (3) weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial
Statement on or before the 4th Friday of the month because there will be a
Board of Directors Meeting and the Financial Statement of the prior month
will be presented and discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity
but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister
Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I was
shown a copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the
amount of P5 million from the PNB Extension Office at Villamor?

A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I
did was to bundle count the P5 million and it was placed in two (2)
peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes,
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the
car of Mr. Tabuena, I was left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock
in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours.
But then I was there at around 4:00 o'clock and we started counting at
around 4:30 p.m. because they have to place it in a room, which is the
office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon
of that date?
A Yes, sir. After we have counted the money, it was placed in the peerless
boxes and Mr. Tabuena left for Malacanang.

PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper
works in the office, sir.
Q So, even if it was already after 5:00 o'clock in the afternoon, you still
went back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had
to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it
was not based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But
then, inasmuch as what we did was to prepare a request to the PNB, then
this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in
Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other
accounting books of MIAA ?
A The payment of P5 million was recorded in a Journal Voucher, your
Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application for
Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from
PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the payment should be made through
the Office of the president, I accepted the receipt given by Mrs. Fe
Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting
documents, vouchers, and use that receipt as a supporting document to
the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement

voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that was very
close to the election held in that year, did you not entertain any doubt that
the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think
there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on
record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA,
did you not consider it proper that a check be issued only after it is
covered by a disbursement voucher duly approved by the proper
authorities ?
A Your Honor, what we did was to send a request for a Manager's check to
the PNB based on the request of Mr. Tabuena and the order of Mr.
Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you
not think it proper to have this transaction covered by a disbursement
voucher?
WITNESS

A Based on my experience, payments out of cash can be made through

cash vouchers, or even though Journal Vouchers, or even through credit
memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of Mr. Tabuena because that was
the order of President Marcos to pay PNCC through the Office of the
President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that
legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order
was to pay PNCC the amount of P5 million through the Office of the
President and it should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D. wherein the President
of the Republic of the Philippines can transfer funds from one office to
another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D.
which you referred to?
A I am not aware of the motive of the President, but then since he is the
President of the Philippines, his order was to pay the PNCC through the
Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when
ordinarily payment of an obligation of MIAA is supposed to be paid in
check?
A I caused the payment through the name of Mr. Tabuena because that
was the order of Mr. Tabuena and also he received an order coming from
the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is
to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the
transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize
such a movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is
misleading because what the witness stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS

A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Honor.
*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?
A Yes, your Honor, because at that time we have also a recorded liability
of P27 million.
*Q we are not talking of whether or not there was a liability. What we are
saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our
existing liability of P27,931,000.00, inasmuch as we have that liability and
I was shown the order of President Marcos to pay P5 million through the
Office of the President, I considered the order of Mr. Luis Tabuena, the
order of President Marcos and also the existing liability of P27 million
sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully
covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents
and at that time I know for a fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability
and I was shown the Order of President Marcos to pay PNCC through his
office, I feel that the order of the General Manager, the order of President

Marcos, and also the memorandum of Minister Ongpin are sufficient to

cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer
funds from one department to another, is this not the one that refers to the
realignment of funds insofar as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is
authorized through a Presidential Decree to transfer government funds
from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the
amount is. . . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you
just throwing words at us in the hope that we will forget what the question
is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA ate covered by the
Appropriations Act so that the payment of this debt would be in the same
level as the realignment of funds authorized the President? Or are you
telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and
different officials in any company either government or private, which are
supposed to check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person
can dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a position to
tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it"., if in your opinion the
disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your judgment
as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant?

A Yes, your Honor.

*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual
in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount
was being disposed of?
A A written protest was not made, your Honor, but I called the attention of
Mr. Tabuena that since this payment was upon the order of President
Marcos, then I think as President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a
memorandum for the record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary
transaction and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. . . .

43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he
presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the
right should be sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these
limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan
had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the witnesses, their crossexaminations supplementing those made by Prosecutor Viernes and far exceeding the latter's
questions in length. The "cold neutrality of an impartial judge" requirement of due process was
certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual
role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion
to the effect that the majority of this Court was "unduly disturbed" with the number of court questions
alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion
not to focus on "numbers" alone, but more importantly to show that the court questions were in the
interest of the prosecution and which thus depart from that common standard of fairness and
impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers"
without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d
833), for example, a new trial was required because the trial judge, as in this case, indulged in
extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's,
201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of

itself determinative. However, taking all this in conjunction with the long and vigorous
examination of the defendant himself by the judge, and the repeated belittling by the
judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its
zeal for arriving at the facts the court here conveyed to the jury too strong an impression
of the court's belief in the defendant's probable guilt to permit the jury freely to perform
its own function of independent determination of the facts. . . .
The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under the
standard employed in a non-jury trial where the judge is admittedly given more leeway in
propounding questions to clarify points and to elicit additional relevant evidence. At the risk of
being repetitious, we will amplify on this via some specific examples. Based on the evidence
on record, and on the admission of Tabuena himself, the P55 million was delivered to the
President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very
close to the election held in that year, did you not entertain any doubt that
the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the
question on the ground that it is improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't think
there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on
record.
Nothing from the preceding questions of counsels or of the court would serve as basis for this
question. How then, can this be considered even relevant? What is the connection between
the payment made to the President's office and the then forthcoming presidential "snap
election"? In another instance, consider the following questions of Presiding Justice
Garchitorena:

*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to
correct certain statements of accounts earlier made in the same journal?
xxx xxx xxx
*Q In other words, really what you are telling us is that, a Journal Voucher
is to explain a transaction was otherwise not recorded.
xxx xxx xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you
are saying it is proper only because of the exceptional nature of the
transactions?
xxx xxx xxx
*Q In other words, as an Accountant, you would not normally authorize
such a movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is
misleading because what the witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated
earlier is that the Journal Voucher in this particular case was supported,
your Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS

A The transaction was fully documented since we have the order of the
General Manager at that time and the order of President Marcos, your
Honor.
*Q Are you saying the Order of the General Manager is an adequate basis
for the movement of money?
*Q We are not talking of whether or not there was a liability. What we are
saying is, is the order of the General Manager by itself adequate with no
other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking
you whether or not there was valid obligation. We are not asking you
about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the
movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the
question being asked and not to whatever you wanted to say. I know you
are trying to protect yourself. We are aware of your statement that there
are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the order of
Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer
funds from one department to another, is this not the one that refers to the
realignment of funds insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA
covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you
just throwing words at us in the hope that we will forget what the question
is?
xxx xxx xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same

level as the realignment of funds authorized the President? Or are you

telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees
authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an
officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different in officers
and different officials in any company either government or private, which
are supposed to check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by
authority of not only one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person
can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents
and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial
Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it.", if in your opinion the disbursement
is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment
as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position and
because you are a Certified Public Accountant? 47
How can these questions be considered clarificatory when they clearly border more on crossexamination questions? Thus, the Dissenting Opinion's focus on the distinction between the
two kinds of trial to justify the Sandiganbayan's active participation in the examination of

petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to
this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution. 48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the
transaction, but it is never proper for a judge to discharge the duties of a prosecuting
attorney. However anxious a judge may be for the enforcement of the law, he should
always remember that he is as much judge in behalf of the defendant accused of crime,
and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of
safeguarding the interests of society. 49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at
length. The circumstances may be such in a given case as to justify the court in so
doing. . . . This court, however, has more than once said that the examination of
witnesses is the more appropriate function of counsel, and the instances are rare and
the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he may
deem improper questions by the court. Then, in conducting a lengthy examination, it
would be almost impossible for the judge to preserve a judicial attitude. While he is not
a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he
will usually not find it necessary to conduct such examinations. The extent to which this
shall be done must largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must not forget the function of
the judge and assume that of an advocate. . . 50
While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays. . . . The judge is an important figure in the trial of a cause, and while
he has the right, and it is often his duty, to question witnesses to the end that justice
shall prevail, we can conceive of no other reason, for him to take the trial of the cause
out of the hands of counsel. 51
The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree which
will justify the presiding judge in entering upon and conducting an extended examination
of a witness, and that the exercise of a sound discretion will seldom deem such action
necessary or advisable. 52
He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in
mind that his undue interference, impatience, or participation in, the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear
or favor, and to dispose of these cases speedily and in as inexpensive a manner as is
possible for the court and the parties, should refrain from showing any semblance of
one-sided or more or less partial attitude in order not to create any false impression in
the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for
the preservation of the people's faith in our courts. 55
Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. Bolstering this requirement, we have added that the
judge must not only be impartial but must also appear to be impartial, to give added
assurance to the parties that his decision will be just. The parties are entitled to no less
than this, as a minimum guaranty of due process. 56
We are well aware of the fear entertained by some that this decision may set a dangerous precedent
in that those guilty of enriching themselves at the expense of the public would be able to escape
criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however,
that we render justice on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only
by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not
follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a
precedent. For the decision in this case to be a precedent, the peculiar circumstances and the
evidence that led to the petitioner's acquittal must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of
constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the
most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it
becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to
justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the
greatest injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are
hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the
Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated
December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.

Adm. Case No. 2474

September 15, 2004

EDUARDO M. COJUANGCO, JR., complainant,

vs.
ATTY. LEO J. PALMA, respondent.
DECISION
PER CURIAM:
"The practice of law is a privilege accorded only to those who measure up to certain rigid standards of
mental and moral fitness. For the admission of a candidate to the bar, the Rules of Court not only
prescribe a test of academic preparation but require satisfactory testimonials of good moral character.

These standards are neither dispensed with nor lowered after admission: the lawyer must continue to
adhere to them or else incur the risk of suspension or removal." 1
Eduardo M. Cojuangco, Jr. filed with this Court the instant complaint for disbarment against Atty. Leo
J. Palma, alleging as grounds "deceit, malpractice, gross misconduct in office, violation of his oath as
a lawyer and grossly immoral conduct."
The facts are undisputed:
Complainant and respondent met sometime in the 70s. Complainant was a client of Angara
Concepcion Regala & Cruz Law Offices (ACCRA) and respondent was the lawyer assigned to handle
his cases. Owing to his growing business concerns, complainant decided to hire respondent as his
personal counsel.
Consequently, respondents relationship with complainants family became intimate. He traveled and
dined with them abroad.2 He frequented their house and even tutored complainants 22-year old
daughter Maria Luisa Cojuangco (Lisa), then a student of Assumptionlavvphil.net
Convent.
On June 22, 1982, without the knowledge of complainants family, respondent married Lisa in
Hongkong. It was only the next
day that respondent informed complainant and assured him that "everything is legal." Complainant
was shocked, knowing fully well that respondent is a married man and has three children. Upon
investigation, complainant found that respondent courted Lisa during their tutoring sessions.
Immediately, complainant sent his two sons to Hongkong to convince Lisa to go home to Manila and
discuss the matter with the family. Lisa was persuaded.
Complainant also came to know that: (a) on the date of the supposed marriage, respondent
requested from his (complainants) office an airplane ticket to and from Australia, with stop-over in
Hong Kong; (b) respondent misrepresented himself as "bachelor" before the Hong Kong authorities to
facilitate his marriage with Lisa; and (c) respondent was married to Elizabeth Hermosisima and has
three children, namely: Eugene Philippe, Elias Anton and Eduardo Lorenzo.
On August 24, 1982, complainant filed with the Court of First Instance, Branch XXVII, Pasay City a
petition3 for declaration of nullity of the marriage between respondent and Lisa, docketed as Civil
Case No. Pq-0401-P. In the Decision4 dated November 2, 1982, the CFI declared the marriage null
and void ab initio.
Thereafter, complainant filed with this Court the instant complaint 5 for disbarment, imputing to
respondent the following acts:
"a. In grave abuse and betrayal of the trust and confidence reposed in him by complainant and his
family and taking undue advantage of his tutoring sessions with Maria Luisa, respondent secretly
courted her. The great disparity in intelligence, education, age, experience and maturity between
Maria Luisa and respondent gave the latter an overwhelming moral ascendancy over Maria Luisa as
to overcome her scruples and apprehensions about respondents courtship and advances,
considering that he is a married man with three (3) children;
b. Respondent courted Maria Luisa with persistence and determination and even pursued her in her
travels abroad under false pretenses that he was traveling on official business for complainant. To

break down the final resistance of Maria Luisa and assuage her pangs of guilt, he made
representations that there was no legal impediment whatsoever to his marrying;
c. With his moral ascendancy over Maria Luisa and his misrepresentation that there was no legal
impediment or prohibition to his contracting a second marriage, respondent succeeded in inducing
and beguiling her into marrying him. Without complying with the requirements of Philippine law that
he should first obtain a judicial declaration of nullity of his marriage to Elizabeth H. Palma and that the
"advice" of Maria Luisas parents should first be obtained she being only twenty-two (22) years of age,
respondent succeeded in contracting marriage with her in Hongkong on June 22, 1982 by falsely
representing himself before the Hongkong authorities that he is a bachelor. x x x."
Respondent filed a motion to dismiss6 on the ground of lack of cause of action. He contended that the
complaint fails to allege acts constituting deceit, malpractice, gross misconduct or violation of his
lawyers oath. There is no allegation that he acted with "wanton recklessness, lack of skill or
ignorance of the law" in serving complainants interest. Anent the charge of grossly immoral conduct,
he stressed that he married complainants daughter with "utmost sincerity and good faith" and that "it
is contrary to the natural course of things for an immoral man to marry the woman he sincerely loves."
In the Resolution7 dated March 2, 1983, we referred the case to the Office of the Solicitor General
(OSG) for investigation, report and recommendation. Former Assistant Solicitor General Oswaldo D.
Agcaoili conducted the investigation.
Meanwhile, on December 28, 1983, the First Division of this Court issued in G.R. No. 64538 8 a
Resolution9 (a) setting aside the CFI Decision dated November 2, 1982 in Civil Case No. Pq0401-P
declaring the marriage between respondent and Lisa null and void ab initio; and (b) remanding the
case to the CFI for proper proceeding and determination. To this date, the records fail to disclose the
outcome of this case.
On March 19, 1984, respondent filed with the OSG an Urgent Motion to Suspend Proceedings 10 on
the ground that the final outcome of Civil Case No. Pq0401-P poses a prejudicial question to the
disbarment proceeding. It was denied.
Respondent sought refuge in this Court through an Urgent Motion for Issuance of a Restraining
Order.11 In the Resolution dated December 19, 1984, we enjoined the OSG from continuing the
investigation of the disbarment proceedings. 12
Thereafter, the case was referred to the Integrated Bar of the Philippines Commission on Bar
Discipline. On October 19, 1998, Commissioner Julio C. Elamparo issued the following order:
"Considering the length of time that this case has remained pending and as a practical
measure to ease the backlog of this Commission, the parties shall within ten (10) days from
notice, manifest whether or not they are still interested in prosecuting this case or
supervening events have transpired which render this case moot and academic or otherwise,
this case shall be deemed closed and terminated."13
In his Manifestation,14 complainant manifested and confirmed his continuing interest in prosecuting
his complaint for disbarment against respondent.
On the other hand, respondent sought several postponements of hearing on the ground that he
needed more time to locate vital documents in support of his defense. The scheduled hearing of
December 4, 2001 was reset for the last time on January 24, 2002, with a warning that should he fail
to appear or present deposition, the case will be deemed submitted for resolution. 15 Respondent

again failed to appear on January 24, 2002; hence, the case was considered submitted for
resolution.16
On March 20, 2003, Investigating Commissioner Milagros V. San Juan submitted a Report and
Recommendation finding respondent guilty of grossly immoral conduct and violation of his oath as a
lawyer. She recommended that respondent be suspended from the practice of law for a period of
three (3) years. Thus:
"The main issue to be resolved in this case is whether or not respondent committed the following acts
which warrant his disbarment:
a) Grave abuse and betrayal of the trust and confidence reposed in him by complainant;
b) His misrepresentation that there was no legal impediment or prohibition to his contracting a second
marriage;
c) The acts of respondent constitute deceit, malpractice, gross misconduct in office, grossly immoral
conduct and violation of his oath as a lawyer.
Respondent admits that he married Maria Luisa in Hongkong representing himself as a bachelor,
however, he claimed that the marriage certificate stated a condition no different from term "spinster"
with respect to Luisa.
There is no question that respondent as a lawyer well versed in the law knew fully well that in
marrying Maria Luisa he was entering into a bigamous marriage defined and penalized under Article
349 of the Revised Penal Code. The respondent betrayed the trust reposed in him by complainant.
He was treated as part of the family and was allowed to tutor Maria Luisa.
For the foregoing reasons, it is submitted that respondent committed grossly immoral conduct and
violation of his oath as a lawyer, and it is recommended that respondent be suspended from the
practice of law for a period of three (3) years.
SO ORDERED."
The IBP Board of Governors adopted and approved the above Report and Recommendation, but it
reduced respondents penalty to only one (1) year suspension.
Except for the penalty, we affirm the IBPs Report and Recommendation.
At the outset, it must be stressed that the law profession does not prescribe a dichotomy of standards
among its members. There is no distinction as to whether the transgression is committed in the
lawyers professional capacity or in his private life. This is because a lawyer may not divide his
personality so as to be an attorney at one time and a mere citizen at another.17 Thus, not only his
professional activities but even his private life, insofar as the latter may reflect unfavorably upon the
good name and prestige of the profession and the courts, may at any time be the subject of inquiry on
the part of the proper authorities.18
Respondent claims that he had served complainant to the best of his ability. In fact, the complaint
does not allege that he acted with "wanton recklessness, lack of skill and ignorance of the law."

While, complainant himself admitted that respondent was a good lawyer,19 however, professional
competency alone does not make a lawyer a worthy member of the Bar. Good moral character is
always an indispensable requirement.
The ringing truth in this case is that respondent married Lisa while he has a subsisting marriage with
Elizabeth Hermosisima. The Certification20 from the Local Civil Registrar of Cebu City shows that he
married Elizabeth on December 19, 1971 at Cardials Private Chapel, Cebu City. On the other hand,
the Certificate of Marriage21 from the Deputy Registrar of Marriages, Hong Kong, proves respondents
subsequent marriage with Lisa on July 9, 1982. That Elizabeth was alive at the time of respondents
second marriage was confirmed on the witness stand by Atty. Victor P. Lazatin, Elizabeths classmate
and family friend.22
Undoubtedly, respondents act constitutes grossly immoral conduct, a ground for disbarment under
Section 27, Rule 138 of the Revised Rules of Court. He exhibited a deplorable lack of that degree
of morality required of him as a member of the Bar. In particular, he made a mockery of marriage
which is a sacred institution demanding respect and dignity. His act of contracting a second marriage
is contrary to honesty, justice, decency and morality.23
This is not the first occasion that we censure immorality. Thus, we have somehow come up with a
common definition of what constitutes immoral conduct, i.e., "that conduct which is willful, flagrant,
or shameless, and which shows a moral indifference to the opinion of the good and
respectable members of the community."24 Measured against this definition, respondents act is
manifestly immoral. First, he abandoned his lawful wife and three children. Second, he lured an
innocent young woman into marrying him. And third, he misrepresented himself as a "bachelor" so he
could contract marriage in a foreign land.
Our rulings in the following cases are relevant:
1) In Macarrubo vs. Macarrubo,25 respondent entered into multiple marriages and then resorted to
legal remedies to sever them. There, we ruled that "[S]uch pattern of misconduct by respondent
undermines the institutions of marriage and family, institutions that this society looks to for the rearing
of our children, for the development of values essential to the survival and well-being of our
communities, and for the strengthening of our nation as a whole." As such, "there can be no other fate
that awaits respondent than to be disbarred."
(2) In Tucay vs. Tucay,26 respondent contracted marriage with another married woman and left
complainant with whom he has been married for thirty years. We ruled that such acts constitute "a
grossly immoral conduct and only indicative of an extremely low regard for the fundamental ethics of
his profession," warranting respondents disbarment.
(3) In Villasanta vs. Peralta,27 respondent married complainant while his first wife was still alive, their
marriage still valid and subsisting. We held that "the act of respondent of contracting the second
marriage is contrary to honesty, justice, decency and morality." Thus, lacking the good moral
character required by the Rules of Court, respondent was disqualified from being admitted to the bar.
(4) In Cabrera vs. Agustin,28 respondent lured an innocent woman into a simulated marriage and
thereafter satisfied his lust. We held that respondent failed to maintain that degree of morality and
integrity, which at all times is expected of members of the bar. He is, therefore, disbarred from the
practice of law.
(5) In Toledo vs. Toledo,29 respondent abandoned his wife, who supported him and spent for his law
education, and thereafter cohabited with another woman. We ruled that he "failed to maintain the

highest degree of morality expected and required of a member of the bar." For this, respondent was
disbarred.
(6) In Obusan vs. Obusan, Jr.,30 respondent abandoned his lawful wife and child and resumed
cohabitation with his former paramour. Here, we ruled that "abandoning ones wife and resuming
carnal relations with a former paramour, a married woman," constitute grossly immoral conduct
warranting disbarment.
The circumstances here speak of a clear case of betrayal of trust and abuse of confidence. It was
respondents closeness to the complainants family as well as the latters complete trust in him that
made possible his intimate relationship with Lisa. When his concern was supposed to be
complainants legal affairs only, he sneaked at the latters back and courted his daughter. Like the
proverbial thief in the night, he attacked when nobody was looking. Moreover, he availed of
complainants resources by securing a plane ticket from complainants office in order to marry the
latters daughter in Hongkong. He did this without complainants knowledge. Afterwards, he even had
the temerity to assure complainant that "everything is legal." Clearly, respondent had crossed the
limits of propriety and decency.
Respondent justified his conduct by professing he really loved Lisa and since he married her, he
cannot be charged with immorality. His reasoning shows a distorted mind and a brazen regard on the
sanctity of marriage. In such relationship, the man and the woman are obliged to live together,
observe mutual respect and fidelity.31 How could respondent perform these obligations to Lisa when
he was previously married to Elizabeth? If he really loved her, then the noblest thing he could have
done was to walk away.
Respondents culpability is aggravated by the fact that Lisa was just a 22-year old college student of
Assumption Convent and was under psychological treatment for emotional immaturity.32 Naturally, she
was an easy prey.
Anent respondents argument that since the validity of his marriage to Lisa has not yet been
determined by the court with finality, the same poses a prejudicial question to the present disbarment
proceeding. Suffice it to say that a subsequent judgment of annulment of marriage has no bearing to
the instant disbarment proceeding. As we held in In re Almacen,33 a disbarment case is sui generis for
it is neither purely civil nor purely criminal but is rather an investigation by the court into the conduct of
its officers. Thus, if the acquittal of a lawyer in a criminal action is not determinative of an
administrative case against him,34 or if an affidavit of withdrawal of a disbarment case does not affect
its course,35 then the judgment of annulment of respondents marriage does not also exonerate him
from a wrongdoing actually committed. So long as the quantum of proof --- clear preponderance of
evidence --- in disciplinary proceedings against members of the bar is met, then liability attaches. 36
The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is
that they "shall not engage in unlawful, dishonest, immoral or deceitful conduct." This is
founded on the lawyers primordial duty to society as spelled out in Canon 1 which states:
"CANON 1 A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for
law and legal processes."
It is not by coincidence that the drafters of our Code of Professional Responsibility ranked the above
responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers
-- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:37

"Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their
sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample
them underfoot and to ignore the very bonds of society, argues recreancy to his position and office
and sets a pernicious example to the insubordinate and dangerous elements of the body politic."
Corollarily, the above responsibility is enshrined in the Attorneys Oath which every lawyer in the
country has to take before he is allowed to practice.
In sum, respondent committed grossly immoral conduct and violation of his oath as a lawyer. The
penalty of one (1) year suspension recommended by the IBP is not commensurate to the gravity of
his offense. The bulk of jurisprudence supports the imposition of the extreme penalty of disbarment.
WHEREFORE, respondent Leo J. Palma is found GUILTY of grossly immoral conduct and violation
of his oath as a lawyer, and is hereby DISBARRED from the practice of law.
Let respondents name be stricken from the Roll of Attorneys immediately. Furnish the Bar Confidant,
the Integrated Bar of the Philippines and all courts throughout the country with copies of this Decision.
SO ORDERED.

G.R. No. 171435

July 30, 2008

ANTHONY T. REYES, Petitioner,

vs.
PEARLBANK SECURITIES, INC., Respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court, petitioner
Anthony T. Reyes prays for the reversal of the 26 October 2005 Decision 1 and 7 February 2006
Resolution2 of the Court of Appeals in "Anthony T. Reyes v. Secretary of the Department of Justice
and Pearlbank Securities, Inc.," docketed as CA-G.R. SP No. 90006, ruling that the Secretary of the

Department of Justice (DOJ) did not commit grave abuse of discretion in finding probable cause to
charge petitioner Reyes with the crime of falsification of commercial and private documents.
Pearlbank Securities, Inc. (PEARLBANK) is a domestic corporation engaged in the securities
business.
Westmont Investment Corporation (WINCORP) is a domestic corporation operating as an investment
house. Among the services rendered by WINCORP to its clients in the ordinary course of its business
as an investment house is the arranging and brokering of loans. Petitioner Anthony T. Reyes was
formerly the Vice President for Operations and Administration of WINCORP.3
PEARLBANK alleged that in March 2000, it received various letters from persons who invested in
WINCORP demanding payment of their matured investments, which WINCORP failed to pay,
threatening legal action. According to these investors, WINCORP informed them that PEARLBANK
was the borrower of their investments. WINCORP alleged that it was unable to repay its investors
because of the failure of its fund borrowers, one of which was PEARLBANK, to pay the loans
extended to them by WINCORP. As proof of their claims, the investors presented Confirmation
Advices,4 Special Powers of Attorney and Certifications signed and issued to them by WINCORP.
The period covered by these Confirmation Advices was from 25 January 2000 to 3 April 2000, with
said Confirmation Advices bearing the words "Borrower: PEARLBANK Securities, Inc."
PEARLBANK denied having any outstanding loan obligation with WINCORP or its investors.
In reaction to the accusations against it, PEARLBANK immediately wrote Antonio T. Ong, WINCORP
President, demanding an explanation as to how and why PEARLBANK was made to appear to be
involved in its transactions. According to PEARLBANK, it did not get any reply from WINCORP.
PEARLBANK alleged that WINCORPs acts of stating and making it appear in several Confirmation
Advices, Special Powers of Attorney and Certifications that PEARLBANK was the borrower of funds
from the lenders/investors of WINCORP constituted falsification of commercial and private
documents.
While PEARLBANK admitted obtaining loans from WINCORP, it alleged that these accounts were
settled by way of an offsetting arrangement. Thus, the promissory notes executed by PEARLBANK
covering such loans were allegedly all stamped "cancelled." It denied obtaining loans from WINCORP
or its lenders/investors from the period 11 December 1998 to 18 January 1999 due to the fact that
there was "no valid and effective grant of a credit facility" in favor of PEARLBANK during the said
period.
On 3 April 2000, PEARLBANK served on WINCORP a final demand letter asking for a full and
accurate accounting of the identities and investments of the lenders/investors and the alleged loan
obligations of PEARLBANK, with the supporting records and documents including the purported
Confirmation Advices.
WINCORP, however, still did not heed the demands of PEARLBANK and failed to produce the loan
agreement documents it allegedly executed with the latter.
On 7 April 2000, PEARLBANK filed two complaints with the Securities and Exchange Commission
(SEC) against Ong and several John Does for full and accurate accounting of the investments of
WINCORP and of PEARLBANKs alleged loan obligations to WINCORP and/or its investors. The
cases were docketed as SEC Cases No. 04-00-6590 and 04-00-6591.

On 6 September 2000, Juanita U. Tan, Treasurer of PEARLBANK, filed a complaint on behalf of

PEARLBANK for falsification by private individuals of commercial and private documents before the
DOJ. The case was docketed as I.S. No. 2000-1491. Named respondents in the complaint were the
officers and directors of WINCORP, to wit: petitioner herein Anthony T. Reyes, Antonio T. Ong, Gilda
C. Lucena,5 Nemesio R. Briones, Loida C. Tamundong,6 Eric R.G. Espiritu, and John or Jane Does.
In answer to the complaint of PEARLBANK in I.S. No. 2000-1491, WINCORP, through Ong,
explained that among the services offered by WINCORP was the arranging and/or brokering of loans
for clients. Upon application of PEARLBANK, WINCORP agreed to arrange and/or broker loans on
behalf of the former. Thus, in a meeting of its Board of Directors on 28 November 1995, WINCORP
approved a credit line in favor of PEARLBANK in the amount of P250M.
According to Ong, pursuant to this Credit Line Agreement, PEARLBANK was able to obtain, through
the brokerage of WINCORP, loans from several lenders/investors in the total amount of
P324,050,474.24 for which PEARLBANK issued promissory notes from 1995 to 1996. The Credit
Line Agreement was renewed for another year or up to 25 October 1996. PEARLBANK made
payments, leaving a balance of around P300M on the loan. On 28 April 1997, the Credit Line
Agreement was amended and the credit line was increased from P250M to P850M. On 11 December
1998, PEARLBANK arranged with WINCORP to transact additional loans from lenders in the amount
of P200M, the proceeds of which were deposited in the account of Farmix Fertilizers, Inc., a
corporation wholly owned and/or controlled by Manuel Tankiansee and Juanita Uy Tan. Following the
previous procedure, WINCORP prepared the promissory notes corresponding to the additional loans,
totaling P200M, and forwarded said documents to PEARLBANK. WINCORP maintains, however, that
the promissory notes were never returned. WINCORP issued the standard Confirmation Advices to
the lenders of PEARLBANK for said loans. Although the promissory notes were stamped "terminated"
or "cancelled," the renewal promissory notes were not sent back/returned by PEARLBANK to
WINCORP.
From the foregoing, WINCORP asserted that PEARLBANK was accurately designated as the
borrower from the lenders/investors. The Confirmation Advices, Special Powers of Attorney, and
Certifications it issued to the lenders/investors, indicating PEARLBANK as the borrower, were
prepared in good faith and in accordance with the records of WINCORP. Hence, the officers and
directors named as respondents in I.S. No. 2000-1491 who prepared, signed, and reviewed such
documents denied having falsified them.
On 2 January 2001, Ong, Lucena, Briones, Tamundong and Espiritu filed a Motion to Admit Attached
Memorandum before the DOJ, asserting that the criminal complaint against them should be
dismissed for lack of probable cause or suspended due to the existence of a prejudicial question
involving the SEC cases.
On 18 June 2001, Prosecutor Estherbella N. Rances of the DOJ Task Force on Financial Fraud
issued a Review Resolution recommending the filing of Informations for falsification of commercial
and private documents by private individuals against petitioner Reyes, Ong, Briones, Lucena,
Espiritu, and Tamundong.
On 21 August 2001, prior to the expiry of the period to file a motion for reconsideration, Informations
for Falsification of Commercial and Private Documents under paragraphs 1 and 2, Article 172, 7 in
relation to paragraph 2 of Article 1718 of the Revised Penal Code, were filed against petitioner, Ong,
Briones, Lucena, Espiritu, and Tamundong before Branch 2 of the Metropolitan Trial Court (MTC) of
Manila apparently relying on the Rances resolution dated 18 June 2001. The cases were docketed as
Criminal Cases No. 365255-88.

On 28 August 2001, petitioner filed a motion for reconsideration of the 18 June 2001 Resolution of
Prosecutor Rances. He raised the issues earlier brought up by Ong, Briones, Lucena, Espiritu and
Tamundong, contending there was lack of probable cause and that there existed a prejudicial
question. The other respondents in the criminal complaint filed a separate joint motion for
reconsideration on 4 September 2001.9
Meanwhile, on 13 November 2001, petitioner filed an Urgent Motion to Suspend Proceedings and to
Defer Arraignment of Accused before the MTC of Manila where the criminal cases were pending,
leading to the cancellation of the arraignment scheduled for 21 November 2001.
Citing no cogent reason to modify or reverse the assailed 18 June 2001 Resolution, Prosecutor
Rances denied the two motions for reconsideration filed by petitioner and his co-respondents in a
Resolution issued on 13 December 2001.
Ong, Briones, Lucena, Espiritu, and Tamundong appealed the 13 December 2001 Resolution 10 to the
Office of the DOJ Secretary while petitioner filed a Petition for Review with the same office. 11
On 27 June 2003, Undersecretary (Usec.) Ma. Merceditas N. Gutierrez (representing the Office of the
DOJ Secretary) resolved the appeal and Petition for Review in a joint Resolution reversing the
Resolutions dated 18 June 2001 and 13 December 2001 of Prosecutor Rances. In ruling that the
complaint in I.S. No. 2000-1491 should be dismissed, Usec. Gutierrez took into consideration the
following:
(1) That the confirmation advices were mere renewals forming part of the earlier loans of
PEARLBANK under an existing credit line agreement;
(2) That [petitioner, Ong, Lucena, Briones, Tamundong, and Espiritu] are mere employees of
WINCORP performing perfunctory functions in good faith;
(3) That Confirmation Advices are not commercial documents;
(4) That SEC Case No. 0400-6590, is a prejudicial question, involving issues which are intimately
related to the issues in the present case.
Thus, the Office of the DOJ Secretary ordered the Office of the Chief State Prosecutor to move for the
withdrawal of the Informations from the MTC. 12
PEARLBANK filed a motion for reconsideration with the Office of the DOJ Secretary for the setting
aside of its 27 June 2003 Resolution, with a motion 13 praying that DOJ Usec. Gutierrez inhibit herself
from the proceedings.
On 4 December 2003, DOJ Secretary Simeon Datumanong issued a Resolution granting the motion
for reconsideration of PEARLBANK.14
In effect, DOJ Secretary Datumanong reversed the 27 June 2003 Resolution of Usec. Gutierrez and
reinstated the 18 June 2001 Resolution of Prosecutor Rances finding probable cause to charge
petitioner and other respondents in I.S. No. 2000-149, except for Eric R. G. Espiritu, for the crime of
falsification of commercial and private documents:
WHEREFORE, the resolution dated 27 June 2003 (Resolution No. 283, Series of 2003) is hereby
REVERSED and SET ASIDE. The Chief State Prosecutors Review Resolution dated 18 June 2001 is

hereby REINSTATED, with the MODIFICATION that respondent ERIC R.G. ESPIRITU should be
excluded. The Chief State Prosecutor is directed to cause the amendment of the informations filed
against said respondent Espiritu by excluding him therefrom, and to report the action taken hereon
within ten (10) days from receipt hereof. 15
In said Resolution, DOJ Secretary Datumanong explained that while Eric R. G. Espiritu was one of
the signatories of the Certifications, considering the nature of the certifications in question and his
duties and functions, it would appear that he was entitled to rely on the Certifications and
representations of those in the Treasury group. The DOJ Secretary ratiocinated that there was no
prejudicial question involved, since the existence of an outstanding obligation on the part of
PEARLBANK under its Credit Line with WINCORP was irrelevant and immaterial to the falsification
cases, and shall not be determinative of the outcome of said falsification cases. Explaining further, he
said that it was clear from the admissions of respondents therein that the loans reflected in the
Confirmation Advices, which appeared to be new loans, were matched against the alleged
outstanding loans of complainant.
On 8 January 2004, petitioner filed a motion for reconsideration of the 4 December 2003 Resolution
of the DOJ Secretary.16
On the other hand, his co-respondents filed a separate motion for reconsideration on 16 January
2004. 17
On 1 March 2005, DOJ Secretary Datumanong denied both motions for reconsideration.
Petitioner sought recourse with the Court of Appeals via a Petition for Certiorari under Rule 65 of the
1997 Revised Rules of Court, docketed as CA-G.R. No. 90006. Petitioner sought the nullification of
the 4 December 2003 DOJ Resolution based on the following arguments:
(a) petitioner did not make any untruthful statements in the Confirmation Advices since [PEARLBANK]
allegedly has an outstanding obligation with Westmont Investment Corporation;
(b) WINCORPs Confirmation Advices subject of the falsification case were not commercial
documents; and
(c) a prejudicial question exists warranting the suspension of proceedings in the falsification case.
During the pendency of the petition for certiorari with the Court of Appeals, petitioner filed an Urgent
Ex Parte Motion to Suspend Further Proceedings before the same MTC Court on 11 July 2005,
contending that Criminal Case Nos. 365255 to 88 should be suspended, since he had filed a pending
Petition for Certiorari under Rule 65 of the Rules of Court with the Court of Appeals to annul the 4
December 2003 and 1 March 2005 Resolution of the DOJ.
On 26 October 2005, the Court of Appeals promulgated its Decision dismissing CA-G.R. No. 90006.
The appellate court found that the DOJ Secretary did not commit grave abuse of discretion in finding
that there was probable cause for holding that petitioner was guilty of the offense charged. It noted
that the Informations were already filed against petitioner before Branch 2 of the MTC of the National
Capital Region (NCR), and petitioners liability for the crime of falsification of commercial and private
documents could best be threshed out at the trial on the merits of the case.
On 7 February 2006, the Court of Appeals issued a Resolution denying petitioners motion for
reconsideration.

Petitioner thus filed this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court,
making the following assignment of errors:
I.
THE COURT OF APPEALS SANCTIONED A DEPARTURE FROM ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS WHEN IT ALLOWED THE ARBITRARY AND CAPRICIOUS
EXERCISE BY THE DOJ OF ITS POWER TO DETERMINE PROBABLE CAUSE. THE DOJ
COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING ITS 4 DECEMBER 2003 AND 1
MARCH 2005 RESOLUTIONS.
II.
THE CONSTITUTION EXPRESSLY PROVIDES THAT NO PERSON SHALL BE DENIED THE
EQUAL PROTECTION OF THE LAWS. HOWEVER, THE COURT OF APPEALS COUNTENANCED
THE DOJS VIOLATION OF SUCH CONSTITUTIONAL RIGHT OF PETITIONER WHEN THE DOJ
DISMISSED THE CHARGES AGAINST MR. ERIC R. G. ESPIRITU AND YET FOUND PROBABLE
CAUSE AGAINST HEREIN PETITIONER EVEN AS BOTH ARE SIMILARLY SITUATED.
III.
THE COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS WHEN IT UPHELD THE DOJ RESOLUTIONS WHICH DID NOT ONLY
FAIL TO CONSIDER THE EVIDENCE ON RECORD. LIKEWISE, THE COURT OF APPEALS
SANCTIONED THESE RESOLUTIONS WHICH WERE NOT IN ACCORD WITH EXISTING LAW
AND SUPREME COURT DECISIONS ON PREJUDICIAL QUESTIONS.
IV.
THE COURT OF APPEALS COMMITTED SERIOUS LEGAL ERROR AND DEPARTED FROM THE
ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT UPHELD THE DOJS
CLASSIFICATION OF THE CONFIRMATION ADVICES SUBJECT OF THE CASE A QUO AS
COMMERCIAL DOCUMENTS, A CLASSIFICATION WHICH IS CONTRARY TO ITS OWN EARLIER
DETERMINATION AND THAT OF THE DOJ.
Essentially, petitioner avers that his rights to due process and equal protection of the law were
jeopardized when DOJ Secretary Datumanong issued his 4 December 2004 Resolution affirming the
finding of probable cause against him and the other respondents in I.S. No. 2000-1491, and reversing
the earlier 27 June 2003 Resolution of his Office, which ordered the dismissal of the complaint of
PEARLBANK, there being no new evidence presented between the two Resolutions. He further
accuses the DOJ Secretary of violating his right to the equal protection of the law by dismissing the
charges against Espiritu, another respondent in I.S. No. 2000-1491, but not those against him. He
insists that the charges against him must be dismissed, arguing that he and Espiritu are similarly
situated.
Petitioner prays that the Court nullify and set aside the Court of Appeals Decision dated 26 October
2005 and Resolution dated 7 February 2006 in CA-G.R. No. 90006, there being no probable cause to
charge him with the crimes of falsification of commercial and private documents. He further alleges
that the proceedings in Criminal Cases No. 365255-88 should be suspended pending resolution of
the two SEC Cases which have now been transferred to the jurisdiction of, and are now pending
before, the Regional Trial Courts of Makati on the ground that the these cases constitute a prejudicial
question.

This Court finds the present petition to be without merit and accordingly denies the same.
The issues presented by petitioner may be narrowed down to two:
(a) whether or not there is probable cause to file an information for falsification of private and
commercial documents against petitioner; and
(b) whether the two cases before the SEC are prejudicial questions which have to be resolved before
the criminal cases may proceed.
Probable cause, for the purpose of filing a criminal information, has been defined as such facts as are
sufficient to engender a well-founded belief that a crime has been committed and that respondent is
probably guilty thereof.18 The term does not mean "actual and positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it
is believed that the act or omission complained of constitutes the offense charged. 19
A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of guilt,
not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt.20 In determining probable cause, the average man weighs
facts and circumstances without resorting to the calibrations of the rules of evidence of which he has
no technical knowledge. He relies on common sense. 21 What is determined is whether there is
sufficient ground to engender a well-founded belief that a crime has been committed, and that the
accused is probably guilty thereof and should be held for trial. It does not require an inquiry as to
whether there is sufficient evidence to secure a conviction.
These findings of probable cause fall within the jurisdiction of the prosecutor or fiscal in the exercise
of executive power, which the courts do not interfere with unless there is grave abuse of discretion.
The determination of its existence lies within the discretion of the prosecuting officers after conducting
a preliminary investigation upon complaint of an offended party. Thus, the decision whether to dismiss
a complaint or not is dependent upon the sound discretion of the prosecuting fiscal. 22 He may dismiss
the complaint forthwith, if he finds the charge insufficient in form or substance or without any ground.
Or he may proceed with the investigation if the complaint in his view is sufficient and in proper form.
To emphasize, the determination of probable cause for the filing of information in court is an executive
function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to the
Secretary of Justice, who may direct the filing of the corresponding information or move for the
dismissal of the case.23 Ultimately, whether or not a complaint will be dismissed is dependent on the
sound discretion of the Secretary of Justice.24 And unless made with grave abuse of discretion,
findings of the Secretary of Justice are not subject to review.25
For this reason, the Court considers it sound judicial policy to refrain from interfering in the conduct of
preliminary investigations and to leave the Department of Justice ample latitude of discretion in the
determination of what constitutes sufficient evidence to establish probable cause for the prosecution
of supposed offenders. Consistent with this policy, courts do not reverse the Secretary of Justices
findings and conclusions on the matter of probable cause except in clear cases of grave abuse of
discretion. 26
The restraint exercised by this Court in interfering with the determination of probable cause by the
prosecutor, unless there is grave abuse of discretion, is only consistent with the general rule that
criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are,
however, exceptions to this rule, 27 none of which are obtaining in the case now before us.

In the present case, petitioner was not able to convince this Court to deviate from the general rule of
non-interference. The Court of Appeals did not err in dismissing petitioners application for a writ of
certiorari, absent grave abuse of discretion on the part of the DOJ Secretary in finding probable cause
against him for the falsification of commercial and private documents.
In D.M. Consunji, Inc. v. Esguerra,28 we defined grave abuse of discretion in this wise:
By grave abuse of discretion is meant, such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility and must be
so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the
duty enjoined by or to act at all in contemplation of law.
Contrary to the claims of petitioner, the Court of Appeals did not perfunctorily or mechanically deny
his Petition for Certiorari therein. A comprehensive review of the assailed Decision of the appellate
court readily reveals that it considered and judiciously passed upon all the arguments presented by
both parties before finally decreeing the dismissal of petitioners Petition for Certiorari.
Although no new evidence was presented by the parties from the time the first Resolution was issued
by DOJ Usec. Gutierrez on 7 June 2003 until the second Resolution was issued by DOJ Secretary
Datumanong on 4 December 2004, the DOJ Secretary is not precluded from making inferences of
fact and conclusions of law which may be different from, contrary to, or even entirely abandoning, the
findings made by DOJ Usec. Gutierrez although they were both faced with the same evidence and
arguments.
First, it must be noted that DOJ Secretary Datumanong issued his Resolution of 4 December 2004
upon the filing by PEARLBANK of a motion for reconsideration of the Resolution dated 7 June 2003
of DOJ Usec. Gutierrez entirely dismissing its complaint. The 4 December 2004 Resolution, therefore,
of DOJ Secretary Datumanong was the result of his acting on, and granting of, the motion for
reconsideration of PEARLBANK. The purpose of a motion for reconsideration is precisely to request
the court or quasi-judicial body to take a second look at its earlier judgment and correct any errors it
may have committed therein.
Second, it cannot be said that DOJ Secretary Datumanongs final ruling is entirely without basis
when, in fact, Reviewing Prosecutor Rances had earlier made a similar finding on 18 June 2001 that
there was probable cause to believe that petitioner and the other respondents in I.S. No. 2000-1491
were guilty of falsification of commercial and private documents, based on essentially the same
evidence and arguments.
And finally, DOJ Secretary Datumanong exhaustively presented in his 4 December 2004 the legal
and factual reasons for his reversal of the 27 June 2003 Resolution of DOJ Usec. Gutierrez, which
negated petitioners assertion of capriciousness, whimsicality, or arbitrariness on his part.
Equally without merit is petitioners assertion that upon dismissal of the charges against his corespondent Espiritu, those against him must likewise be dismissed. Petitioner insists that if the
charges against an accused rest upon the same evidence used to charge a co-accused, the
dismissal of the charges against the former should benefit the latter.
This is flawed reasoning, a veritable non sequitur.
Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must be
charged with what crime or for what offense. In Webb v. De Leon 29 in which the petitioners questioned

the non-inclusion of Alfaro in the Information for rape with homicide filed against them, despite
Alfaros alleged conspiratorial participation in the crime charged, this Court pronounced that:
[T]he prosecution of crimes appertains to the executive department of government whose principal
power and responsibility is to see that our laws are faithfully executed. A necessary component of this
power to execute our laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion---the discretion of whether, what and whom to charge, the
exercise of which depends on a smorgasboard of factors which are best appreciated by prosecutors x
x x.
While the right to equal protection of the law requires that litigants are treated in an equal manner by
giving them the same rights under similar circumstances, 30 it may not be perversely used to justify
desistance by the authorities from prosecution of a criminal case, just because not all of those who
are probably guilty thereof were charged.
Petitioner further insists that the proceedings in SEC Cases No. 04-00-6590 and No. 04-00-6591,
now pending before the RTC of Makati31 (civil cases), warrant the suspension of Criminal Cases No.
365255-88. (criminal cases).
We disagree.
Under Rule 111 of the Revised Rules of Court, a criminal action may be suspended upon the
pendency of a prejudicial question in a civil action, to wit:
Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a civil action may be filed in the office of the
prosecutor or the court conducting the preliminary investigation. When the criminal action has been
filed in court for trial, the petition to suspend shall be filed in court for trial, and shall be filed in the
same criminal action at any time before the prosecution rests.
A prejudicial question is defined as one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. 32
The prejudicial question must be determinative of the case before the court, but the jurisdiction to try
and resolve the question must be lodged in another court or tribunal. It is a question based on a fact
distinct and separate from the crime, but so intimately connected with it that it determines the guilt or
innocence of the accused; and for it to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the criminal prosecution would be based,
but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of
the accused would necessarily be determined.33
It comes into play generally in a situation in which a civil action and a criminal action are both pending
and there exists in the former an issue which must be preemptively resolved before the criminal
action may proceed, because howsoever the issue raised in the civil action is resolved would be
determinative juris et de jure of the guilt or innocence of the accused in the criminal case. 34
The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. Based
on Section 7 of the same rule, it has two essential elements:
Sec. 7. Elements of prejudicial question. - The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in the

subsequent criminal action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
In Sabandal v. Tongco,35 this Court had the opportunity to further expound on the resolution of
prejudicial questions in this manner:
If both civil and criminal cases have similar issues or the issue in one is intimately related to the
issues raised in the other, then a prejudicial question would likely exist, provided the other element or
characteristic is satisfied. It must appear not only that the civil case involves the same facts upon
which the criminal prosecution would be based, but also that the resolution of the issues raised in the
civil action would be necessarily determinative of the guilt or innocence of the accused. If the
resolution of the issue in the civil action will not determine the criminal responsibility of the accused in
the criminal action based on the same facts, or there is no necessity "that the civil case be
determined first before taking up the criminal case," therefore, the civil case does not involve a
prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can,
according to law, proceed independently of each other.
There is no prejudicial question here.
We note that the Informations filed in the criminal cases charge petitioner and his other co-accused
with falsification of commercial and private documents under paragraph 1 of Article 172, in relation to
paragraph 2 of Article 171 of the Revised Penal Code; and paragraph 2 of Article 172, in relation to
paragraph 2 of Article 171 of the Revised Penal Code, in signing and/or issuing the questioned
Confirmation Advices, Special Powers of Attorney and Certifications on behalf of WINCORP, stating
therein that PEARLBANK owed the third parties (lenders and investors). Each of the Informations 36
alleged that the therein named accused:
x x x confederating and conspiring together, did then and there willfully, unlawfully and feloniously
prepare, execute and sign a Confirmation Advice of WINCORP x x x to make it appear in the said
commercial document that PEARLBANK SECURITIES, INC., a corporation legally established, is a
borrower of WINCORP, having allegedly secured and granted a loan in the amount of x x x when in
truth and in fact, the said accused well knew that PEARLBANK SECURITIES, INC. had not secured
nor had been granted said loan on the date above-mentioned, and having falsified said document in
the manner stated, the said accused issued a copy of the said document, which has not been
notarized before a notary public or other person legally authorized to do so, the accused issued the
said document to, and was received by one Tiu K. Tiac to the damage and prejudice of PEARLBANK
SECURITIES, INC., represented by its Treasurer and Director Juanita U. Tan.
The principal issue to be resolved in the criminal cases is whether or not petitioner committed the acts
referred to in the Informations, and whether or not these would constitute falsification of commercial
and private documents under the law.1awphi1
In contrast, the issues to be resolved in SEC Case No. 04-00-6591 are as follows:
(1) whether or not Tankiansee is entitled to the accounting and disclosure pursuant to Section 74, Tile
VII of the Corporation Code of the Philippines;
(2) whether or not Tankiansee is entitled to be furnished copies of the records or documents
demanded from WINCORP;
(3) whether or not WINCORP is liable to Tankiansee for damages.

SEC Case No. 04-00-6590 involves the following issues:

(1) whether or not PEARLBANK has loan obligations with WINCORP or its stockholders;
(2) whether or not the subject Confirmation Advices and other related documents should be declared
to be without force and effect or if PEARLBANK is entitled to be relieved of the legal effects thereof;
(3) whether or not defendants therein are liable for damages to PEARLBANK as a consequence of
this alleged fraudulent scheme.37
A cursory reading of the above-mentioned issues would show that, although apparently arising from
the same set of facts, the issues in the criminal and civil cases are clearly different from one another.
Furthermore, the issues in the civil cases are not determinative of the issues in the criminal cases.
Petitioner particularly calls attention to the purported prejudicial issue in the civil cases: whether
PEARLBANK has outstanding loan obligations to WINCORP or its stockholders/investors. Although
said issue may be related to those in the criminal cases instituted against petitioner, we actually find it
immaterial to the resolution of the latter.
That PEARLBANK does have outstanding loans with WINCORP or its stockholders/investors is not
an absolute defense in, and would not be determinative of the outcome of, the criminal cases. Even if
the RTC so rules in the civil cases, it would not necessarily mean that these were the very same loan
transactions reflected in the Confirmation Advices, Special Powers of Attorney and Certifications
issued by WINCORP to its stockholders/investors, totally relieving petitioner and his other co-accused
from any criminal liability for falsification. The questioned documents specifically made it appear that
PEARLBANK obtained the loans during the first four months of the year 2000. Hence, in the criminal
cases, it is not enough that it be established that PEARLBANK has outstanding loans with WINCORP
or its stockholders/investors, but also that these loans were acquired by PEARLBANK as WINCORP
made it to appear in the questioned documents it issued to its stockholders/investors. This only
demonstrates that the resolution of the two civil cases is not juris et de jure determinative of the
innocence or guilt of the petitioner in the criminal cases.
Finally, we note that the criminal cases were already instituted and pending before the MTC.
Petitioner would have the opportunity to present the arguments and evidence in his defense in the
course of the trial of said cases which will now proceed by virtue of this Decision.
WHEREFORE, premises considered, the instant Petition for Review on Certiorari is DENIED. The
Decision dated 26 October 2005 and Resolution dated 7 February 2006 of the Court of Appeals in
CA-G.R. No. 90006 are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.

G.R. No. 172060

September 13, 2010

JOSELITO R. PIMENTEL, Petitioner,

vs.
MARIA CHRYSANTINE L. PIMENTEL and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the Decision2 of the Court of Appeals, promulgated
on 20 March 2006, in CA-G.R. SP No. 91867.
The Antecedent Facts
The facts are stated in the Court of Appeals decision:
On 25 October 2004, Maria Chrysantine Pimentel y Lacap (private respondent) filed an action for
frustrated parricide against Joselito R. Pimentel (petitioner), docketed as Criminal Case No. Q-04130415, before the Regional Trial Court of Quezon City, which was raffled to Branch 223 (RTC
Quezon City).
On 7 February 2005, petitioner received summons to appear before the Regional Trial Court of
Antipolo City, Branch 72 (RTC Antipolo) for the pre-trial and trial of Civil Case No. 04-7392 (Maria
Chrysantine Lorenza L. Pimentel v. Joselito Pimentel) for Declaration of Nullity of Marriage under
Section 36 of the Family Code on the ground of psychological incapacity.
On 11 February 2005, petitioner filed an urgent motion to suspend the proceedings before the RTC
Quezon City on the ground of the existence of a prejudicial question. Petitioner asserted that since
the relationship between the offender and the victim is a key element in parricide, the outcome of Civil
Case No. 04-7392 would have a bearing in the criminal case filed against him before the RTC
Quezon City.
The Decision of the Trial Court
The RTC Quezon City issued an Order dated 13 May 2005 3 holding that the pendency of the case
before the RTC Antipolo is not a prejudicial question that warrants the suspension of the criminal case
before it. The RTC Quezon City held that the issues in Criminal Case No. Q-04-130415 are the
injuries sustained by respondent and whether the case could be tried even if the validity of petitioners
marriage with respondent is in question. The RTC Quezon City ruled:
WHEREFORE, on the basis of the foregoing, the Motion to Suspend Proceedings On the [Ground] of
the Existence of a Prejudicial Question is, for lack of merit, DENIED.
SO ORDERED.4
Petitioner filed a motion for reconsideration. In its 22 August 2005 Order,5 the RTC Quezon City
denied the motion.
Petitioner filed a petition for certiorari with application for a writ of preliminary injunction and/or
temporary restraining order before the Court of Appeals, assailing the 13 May 2005 and 22 August
2005 Orders of the RTC Quezon City.
The Decision of the Court of Appeals

In its 20 March 2006 Decision, the Court of Appeals dismissed the petition. The Court of Appeals
ruled that in the criminal case for frustrated parricide, the issue is whether the offender commenced
the commission of the crime of parricide directly by overt acts and did not perform all the acts of
execution by reason of some cause or accident other than his own spontaneous desistance. On the
other hand, the issue in the civil action for annulment of marriage is whether petitioner is
psychologically incapacitated to comply with the essential marital obligations. The Court of Appeals
ruled that even if the marriage between petitioner and respondent would be declared void, it would be
immaterial to the criminal case because prior to the declaration of nullity, the alleged acts constituting
the crime of frustrated parricide had already been committed. The Court of Appeals ruled that all that
is required for the charge of frustrated parricide is that at the time of the commission of the crime, the
marriage is still subsisting.
Petitioner filed a petition for review before this Court assailing the Court of Appeals decision.
The Issue
The only issue in this case is whether the resolution of the action for annulment of marriage is a
prejudicial question that warrants the suspension of the criminal case for frustrated parricide against
petitioner.
The Ruling of this Court
The petition has no merit.
Civil Case Must be Instituted
Before the Criminal Case
Section 7, Rule 111 of the 2000 Rules on Criminal Procedure 6 provides:
Section 7. Elements of Prejudicial Question. - The elements of a prejudicial question are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action and (b) the resolution of such issue determines whether or not the criminal
action may proceed.
The rule is clear that the civil action must be instituted first before the filing of the criminal action. In
this case, the Information7 for Frustrated Parricide was dated 30 August 2004. It was raffled to RTC
Quezon City on 25 October 2004 as per the stamped date of receipt on the Information. The RTC
Quezon City set Criminal Case No. Q-04-130415 for pre-trial and trial on 14 February 2005. Petitioner
was served summons in Civil Case No. 04-7392 on 7 February 2005. 8 Respondents petition9 in Civil
Case No. 04-7392 was dated 4 November 2004 and was filed on 5 November 2004. Clearly, the civil
case for annulment was filed after the filing of the criminal case for frustrated parricide. As such, the
requirement of Section 7, Rule 111 of the 2000 Rules on Criminal Procedure was not met since the
civil action was filed subsequent to the filing of the criminal action.
Annulment of Marriage is not a Prejudicial Question
in Criminal Case for Parricide
Further, the resolution of the civil action is not a prejudicial question that would warrant the
suspension of the criminal action.
There is a prejudicial question when a civil action and a criminal action are both pending, and there
exists in the civil action an issue which must be preemptively resolved before the criminal action may

proceed because howsoever the issue raised in the civil action is resolved would be determinative of
the guilt or innocence of the accused in the criminal case. 10 A prejudicial question is defined as:
x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved
therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact
distinct and separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said
case involves facts intimately related to those upon which the criminal prosecution would be based
but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of
the accused would necessarily be determined.11
The relationship between the offender and the victim is a key element in the crime of parricide, 12
which punishes any person "who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants or descendants, or his spouse." 13 The relationship between the
offender and the victim distinguishes the crime of parricide from murder 14 or homicide.15 However, the
issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case
for parricide. Further, the relationship between the offender and the victim is not determinative of the
guilt or innocence of the accused.
The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether
petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue
in parricide is whether the accused killed the victim. In this case, since petitioner was charged with
frustrated parricide, the issue is whether he performed all the acts of execution which would have
killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes
independent of petitioners will. 16 At the time of the commission of the alleged crime, petitioner and
respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil
Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time
of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent
is annulled, petitioner could still be held criminally liable since at the time of the commission of the
alleged crime, he was still married to respondent.1avvphi1
We cannot accept petitioners reliance on Tenebro v. Court of Appeals17 that "the judicial declaration
of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the
celebration of the marriage insofar as the vinculum between the spouses is concerned x x x." First,
the issue in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent
marriage on the ground of psychological incapacity on a criminal liability for bigamy. There was no
issue of prejudicial question in that case. Second, the Court ruled in Tenebro that "[t]here is x x x a
recognition written into the law itself that such a marriage, although void ab initio, may still produce
legal consequences."18 In fact, the Court declared in that case that "a declaration of the nullity of the
second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the
States penal laws are concerned."19
In view of the foregoing, the Court upholds the decision of the Court of Appeals. The trial in Criminal
Case No. Q-04-130415 may proceed as the resolution of the issue in Civil Case No. 04-7392 is not
determinative of the guilt or innocence of petitioner in the criminal case.
WHEREFORE, we DENY the petition. We AFFIRM the 20 March 2006 Decision of the Court of
Appeals in CA-G.R. SP No. 91867.
SO ORDERED.

SECOND DIVISION
[A.M. No. MTJ-96-1088. July 19, 1996]
RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY, respondent.
DECISION
ROMERO, J.:
The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao del Norte,
Rodolfo G. Navarro. He has submitted evidence in relation to two specific acts committed by
respondent Municipal Circuit Trial Court Judge Hernando Domagtoy, which, he contends, exhibits
gross misconduct as well as inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between Gaspar A. Tagadan
and Arlyn F. Borga, despite the knowledge that the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano Dador Sumaylo and
Gemma G. del Rosario outside his court's jurisdiction on October 27, 1994. Respondent judge holds

office and has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del
Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa,
which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos,
located some 40 to 45 kilometers away from the municipality of Dapa, Surigao del Norte.
In his letter-comment to the Office of the Court Administrator, respondent judge avers that the office
and name of the Municipal Mayor of Dapa have been used by someone else, who, as the mayor's
"lackey," is overly concerned with his actuations both as judge and as a private person. The same
person had earlier filed Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit
on September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge
Hernando C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from his act of having
solemnized the marriage between Gaspar Tagadan, a married man separated from his wife, and Arlyn F.
Borga by stating that he merely relied on the Affidavit issued by the Municipal Trial Judge of Basey,
Samar, confirming the fact that Mr. Tagadan and his first wife have not seen each other for almost
seven years.i[1] With respect to the second charge, he maintains that in solemnizing the marriage
between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which
states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the
court's jurisdiction; and that Article 8 thereof applies to the case in question.
The complaint was not referred, as is usual, for investigation, since the pleadings submitted were
considered sufficient for a resolution of the case.ii[2]
Since the countercharges of sinister motives and fraud on the part of complainant have not been
sufficiently proven, they will not be dwelt upon. The acts complained of and respondent judge's answer
thereto will suffice and can be objectively assessed by themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn Borga states that
Tagadan's civil status is "separated." Despite this declaration, the wedding ceremony was solemnized
by respondent judge. He presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and
Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C. Duquilla, Municipal Trial
Judge of Basey, Samar.iii[3] The affidavit was not issued by the latter judge, as claimed by respondent
judge, but merely acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar
Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after thirteen years of
cohabitation and having borne five children, Ida Pearanda left the conjugal dwelling in Valencia,
Bukidnon and that she has not returned nor been heard of for almost seven years, thereby giving rise to
the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is sufficient proof of Ida
Pearanda's presumptive death, and ample reason for him to proceed with the marriage ceremony. We do
not agree.
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present had a well-founded belief that the absent spouse was

already dead. In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Articles 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse." (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear and
simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a
summary proceeding for the declaration of presumptive death is necessary in order to contract a
subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family
Code to discourage subsequent marriages where it is not proven that the previous marriage has been
dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent
provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration of his first
wife's presumptive death. Absent this judicial declaration, he remains married to Ida Pearanda. Whether
wittingly, or unwittingly, it was manifest error on the part of respondent judge to have accepted the
joint affidavit submitted by the groom. Such neglect or ignorance of the law has resulted in a bigamous,
and therefore void, marriage. Under Article 35 of the Family Code, "The following marriage shall be
void from the beginning: (4) Those bigamous x x x marriages not falling under Article 41."
The second issue involves the solemnization of a marriage ceremony outside the court's jurisdiction,
covered by Articles 7 and 8 of the Family Code, thus:
"Art. 7.Marriage may be solemnized by:
(1)

Any incumbent member of the judiciary within the court's jurisdiction;

x x x x x x xxx (Emphasis supplied.)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may
be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote
places in accordance with Article 29 of this Code, or where both parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a house or place designated by
them in a sworn statement to that effect."
Respondent judge points to Article 8 and its exceptions as the justifications for his having solemnized
the marriage between Floriano Sumaylo and Gemma del Rosario outside of his court's jurisdiction. As
the aforequoted provision states, a marriage can be held outside of the judge's chambers or courtroom
only in the following instances: (1) at the point of death, (2) in remote places in accordance with Article
29 or (3) upon request of both parties in writing in a sworn statement to this effect. There is no pretense
that either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover, the written
request presented addressed to the respondent judge was made by only one party, Gemma del Rosario. iv
[4]

More importantly, the elementary principle underlying this provision is the authority of the solemnizing
judge. Under Article 3, one of the formal requisites of marriage is the "authority of the solemnizing
officer." Under Article 7, marriage may be solemnized by, among others, "any incumbent member of
the judiciary within the court's jurisdiction." Article 8, which is a directory provision, refers only to the
venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as
provided in the preceding provision. Non-compliance herewith will not invalidate the marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful, is authorized to
do so only within the area of the diocese or place allowed by his Bishop. An appellate court Justice or a
Justice of this Court has jurisdiction over the entire Philippines to solemnize marriages, regardless of
the venue, as long as the requisites of the law are complied with. However, judges who are appointed to
specific jurisdictions, may officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant irregularity in the formal
requisite laid down in Article 3, which while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability.v[5]
Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica and Burgos, he
was not clothed with authority to solemnize a marriage in the municipality of Dapa, Surigao del Norte.
By citing Article 8 and the exceptions therein as grounds for the exercise of his misplaced authority,
respondent judge again demonstrated a lack of understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the law. The legal
principles applicable in the cases brought to our attention are elementary and uncomplicated, prompting
us to conclude that respondent's failure to apply them is due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least, proficient in the law they
are sworn to apply, more than the ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be conversant with basic legal principles
like the ones involved in instant case.vi[6] It is not too much to expect them to know and apply the law
intelligently.vii[7] Otherwise, the system of justice rests on a shaky foundation indeed, compounded by
the errors committed by those not learned in the law. While magistrates may at times make mistakes in
judgment, for which they are not penalized, the respondent judge exhibited ignorance of elementary
provisions of law, in an area which has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous and void, there being
a subsisting marriage between Gaspar Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the Court, a six-month
suspension and a stern warning that a repetition of the same or similar acts will be dealt with more
severely. Considering that one of the marriages in question resulted in a bigamous union and therefore
void, and the other lacked the necessary authority of respondent judge, the Court adopts said
recommendation. Respondent is advised to be more circumspect in applying the law and to cultivate a
deeper understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is hereby
SUSPENDED for a period of six (6) months and given a STERN WARNING that a repetition of the
same or similar acts will be dealt with more severely.

SO ORDERED.

ii

iii

iv

vi

vii

Sy vs. Court of Appeals

April 12, 2000
The case:
For review is the decision of the Court of Appeals which affirmed the decision of the
regional Trial Court of San Fernando, Pampanga, denying the petition for declaration of
absolute nullity of marriage of the spouses Filipina Sy and Fernando Sy.

The facts:
Petitioner Filipina Sy and private respondent Fernando Sy contracted marriage on
November 15, 1973 at the Church of our Lady of Lourdes in Quezon City. Both were then
22 years old. Their union was blessed with two children. On September 15, 1983,
Fernando left their conjugal dwelling. Since then, the spouses lived separately and their
two children were in the custody of their mother. On February 11, 1987, Filipina filed a
petition for legal separation before the RTC of San Fernando, Pampanga and was later
amended to a petition for separation of property. Judgment was rendered dissolving their
conjugal partnership of gains and approving a regime of separation of properties based
on the Memorandum of Agreement executed by the spouses. In May 1988, Filipina filed a
criminal action for attempted parricide against her husband. RTC Manila convicted
Fernando only of the lesser crime of slight physical injuries and sentenced him to 20 days
imprisonment. Petitioner filed a petition for the declaration of absolute nullity of her
marriage to Fernando on the ground of psychological incapacity on August 4, 1992. RTC
and Court of Appeals denied the petition and motion for reconsideration. Hence, this
appeal by certiorari, petitioner for the first time, raises the issue of the marriage being
void for lack of a valid marriage license at the time of its celebration. The date of issue of
marriage license and marriage certificate is contained in their marriage contract which
was attached in her petition for absolute declaration of absolute nullity of marriage before
the trial court. The date of the actual celebration of their marriage and the date of
issuance of their marriage certificate and marriage license are different and incongruous.
The Issues:
Whether or not the marriage between petitioner and private respondent is void from the
beginning for lack of marriage license at the time of the ceremony?
Whether or not private respondent is psychologically incapacitated at the time of said
marriage celebration to warrant a declaration of its absolute nullity?
Held:
A marriage license is a formal requirement; its absence renders the marriage void ab
initio. The pieces of evidence presented by petitioner at the beginning of the case, plainly
and indubitably show that on the day of the marriage ceremony, there was no marriage
license. The marriage contract also shows that the marriage license number 6237519 was
issued in Carmona, Cavite yet neither petitioner nor respondent ever resided in Carmona.
From the documents she presented, the marriage license was issued almost one year
after the ceremony took place. Article 80 of the Civil Code is clearly applicable in this
case, there being no claim of exceptional character enumerated in articles 72-79 of the
Civil Code. The marriage between petitioner and private respondent is void from the
beginning. The remaining issue on the psychological capacity is now mooted by the
conclusion of this court that the marriage of petitioner to respondent is void ab initio for
lack of marriage license at the time heir marriage was solemnized.
Petition is granted. The marriage celebrated on November 15, 1973 between petitioner
Filipina Sy and private respondent Fernando Sy is hereby declared void ab initio for lack of
marriage license at the time of celebration.